AoEJ: Academy of Education Journal
Vol. 14 No 2 Tahun 2023
Eka Putriani Harahap
and Annisa Sativa
North Sumatra State Islamic University
Every human being must face a risk. The way to deal with the possibility of an unexpected event is
by transferring the risk to another party through an insurance agreement. The research was carried
out using a normative juridical approach, especially the statutory approach, where the relevant laws
and regulations will be studied in relation to the main issues that the author examines. The author
draws the conclusion, based on research, that the Underwriter is responsible for setting selection
standards and making decisions for all prospective customers until the policy is issued. An
Underwriter is bound to make mistakes in their work. However, the Civil Code has regulated the
responsibilities of employers and workers to address this issue. Article 1367 of the Civil Code
states that because the insurer works for a company, the insurer will be held liable if a lawsuit
occurs involving an error in the underwriting process. Thus, the rights of insurance policy holders
remain protected.
Keywords: Liability, Underwriter, Insurance Policy, Life Insurance
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 CC BY-SA International License.
The concept of property and ownership is one of the important subjects in Islam.
Islam places the position of wealth as an important thing which is proven that there are five
maqashid sharia, one of which is hifz al-maal or maintaining assets. (Toriquddin, 2014) .
Islam believes that all wealth in the world belongs to Allah alone, where humans only have
the right to use and make use of it. However, Islam also recognizes a person's personal
rights. For this reason, Islam prescribes regulations regarding muamalah such as buying
and selling, leasing, mortgages, and so on, and prohibits fraud, usury and obliges people
who destroy other people's goods to pay for it.
Indonesia is a country of laws. Where everything is regulated by law with the
intention of protecting the rights of everyone. To overcome the possibility of an event that
cannot be anticipated or known when it will occur, humans must face risky problems by
transferring risk to other parties who are ready for it. Namely by signing an insurance
contract. In article 1 (one) of the Commercial Law Code (KUHD) it is stated that,
"Insurance is an agreement by which the insured makes an obligation to the insurer by
paying insurance premiums to compensate for losses, damages or loss of expected profits
due to an uncertain event.” In addition to Article 246 of the Criminal Code, insurance
based on Insurance Law Number 2 of 1992 is an agreement between 1 (one) party and
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another party where the insurer makes an obligation to the insured by receiving a premium
to compensate the insured for loss, damage or loss of anticipated benefits or legal liability
to third parties that may be suffered by the insured as a result of an uncertain event or
settlement of an event of payment as a result of the insured's death (Ramli, 2020) .
Law Number 40 of 2014 also provides an understanding of insurance, that coverage
is an agreement between the insurance company and the policyholder, whereby the
insurance company receives insurance premiums in return for: a) Providing compensation
to the insured in the event that the insured suffers or suffers a loss, damage, loss of profits
or legal liability to third parties as a result of an uncertain event; or, b) Profits whose
amount is determined and/or obtained from the results of managing the funds, can be paid
as payment for the death of the insured (RI, 2014) .
Juridically, insurance is divided into 2 (two), namely loss insurance and total
insurance (sommen verzekering). Loss insurance is an agreement between the insurer and
the insured which stipulates that the insurer is obliged to carry out certain achievements,
such as paying a premium for the loss he suffers. The agreement which constitutes total
insurance itself stipulates that the insurer must carry out the performance by paying a
predetermined amount of money
And life insurance is included in this category. Emmy Pangaribuan Simanjuntak said
that life insurance is an agreement where one party promises to pay a certain amount of
money regularly or all at once, and the other party promises to pay a premium, which
depends on the person's death (Sastrawidjaja, 1997 ) . Underwriters are members of an
insurance company who are responsible for setting selection guidelines and making
decisions for each potential insured. Underwriting is a process in which someone who will
become an insured in a life insurance company must determine the amount of premium
they will pay. Underwriting on the other hand is the process of classifying the risk level of
the insured candidate or insured group and deciding whether to accept or reject that risk (II,
1990) .
Every insurance company is required to comply with operational standards of
business conduct, one of which contains provisions regarding underwriting and
identification of policyholders, insured or participants, in accordance with Article 26
paragraph 1 of Law Number 40 of 2014. It is the size of each company's underwriting
criteria that will affect the level premium. In Article 34 of the Financial Services Authority
Regulation No. 69/POJK.05/2016 Concerning Business Conduct of Insurance Companies,
Sharia Insurance Companies, Reinsurance Companies, and Sharia Reinsurance Companies,
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business actors are required to have Underwriting Guidelines to be able to market a
product or service. This will show that the risk selection process is carried out carefully
and in accordance with the applicable insurance policy. Because the practice of agreements
in insurance agreements is a standard agreement, legal protection for policyholders
becomes very important. With the enactment of the standard agreement, the legal
protection of insurance policy holders is questioned because of the unequal position
between them and the insurance company.
As regulated in Law Number 21 of 2011, the Financial Services Authority (OJK) is
an institution that has the authority and function to provide legal protection. Article 55
paragraph 1 states that: "In the event of a dispute arising between an insurance policy
holder and an insurance company, the financial services authority is obliged to implement
a consumer dispute resolution mechanism either through court or litigation, as well as
disputes outside the court or non-litigation. according to their functions, duties and
authorities. The authority to regulate and supervise financial services activities in the
capital market, insurance, pension funds, financing institutions and other financial services
institutions sectors was transferred to OJK since 31 December 2012. However, the problem
lies in the extent to which insurance policyholders can be protected.
This research uses normative legal research, or legal research that views law as a
building system of norms. Principles, norms, laws, conventions, and doctrines all fall under
this normative system. Using a statutory approach, all relevant laws and regulations will be
examined in relation to the legal issue being investigated. Primary legal materials come
from relevant laws and regulations, secondary legal materials come from legal science
literature, and tertiary legal materials come from legal dictionaries. After that, the legal
materials were analyzed qualitatively normatively. In this study, the stages of data analysis
used the deductive method, namely the process of drawing conclusions from 1 (one) or
more general statements. This method will create new truths that come from existing and
known truths
Implementation of Underwriting in the Life Insurance Policy Issuance Process
Life insurance is an agreement between 2 (two) or more parties where the insurer
binds himself to the insured by receiving a premium to provide payment based on the death
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of the insured (Aqimuddin & Kusnungi, 2022) . Life insurance comes in various types.
First, is one-time insurance. There is a time limit on this insurance, even though the
insurance premium is relatively cheap, the premium paid will be forfeited if the
policyholder does not face the risk at the end of the term. Second, lifetime insurance. There
is a time limit for this insurance, which is until the policyholder dies. The sum insured will
be distributed to the heirs of the policyholder after his death. Third, dual purpose
insurance. This insurance can be used as a means of investment. The premiums paid are
also more expensive, but when the inclusion period is closed and the policyholder does not
experience risk, they will still receive sum assured. Fourth, annuity protection is just an
added benefit, the purpose of this insurance is to invest in old age. When someone buys life
insurance, the purposes for which the sum insured is used are: a) Protection for
beneficiaries; b) Investments and savings, such as funds for education, old age, and future
capital; c) Collateral against a mortgage or other loan from a legally constituted financial
entity; d) Protection of business partners and important people; e) A combination of 2
(two) or more things.
Underwriters play an important role in the insurance business. The Underwriter's job
is to check insurance or loan applications and calculate the risks. The Underwriter's job is
to select risks, including health risks, family medical history, occupation, financial
situation, hobbies of the prospective insured, and relationships with the parties to the
insurance contract. Its most important function is to determine whether the prospective
insured meets the requirements. Underwriters have the following obligations: a) First,
collect information from customers who come to apply for insurance, credit, or loans. The
Underwriter checks personal data such as the identity of the prospective customer, income,
place of residence, employment status, financial investments and debt holdings; b) Second,
checking client information manually through interviews. Electronic verification is carried
out after manual verification is completed. In addition, Underwriters can inquire about the
financial situation of prospective customers with other parties if necessary.
The underwriter must pay attention to the following matters in determining the risk
assessment criteria or risk parameters that must be guaranteed. Namely as follows:
1) Assessment of Policyholders. Policyholder is the person or legal entity responsible for
the insurance contract. The policyholder must be an individual or business entity that
has a relationship with the prospective insured (Tauris & Qomariyah, 2015) . This
relationship can take many forms, including parent-child, grandparent-grandchild and
legal entity-employee. If the prospective policyholder is a legal entity, the
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completeness of the documents supporting the fulfillment of the legal aspects of the
legal entity must be examined to determine its legality.
a. Age Requirements as a Policyholder. Since the policyholder is responsible for
the contract, the minimum age must be the legal age of majority, and the
maximum age must be the average age at which a person can still communicate
and correspond.
b. Required Documents. The following are the documents required for prospective
policy holders, namely: a) Person: KTP (for Indonesian citizens aged > 16
(sixteen years), Family Card (for Indonesian citizens aged < 16 (sixteen years),
KITAS and passport (for Foreigner); b) Institution: establishment deed,
company regulations, permit from the competent authority, financial statements,
and Taxpayer Number (NPWP).
2) Assessment of the Insured. A person who is the object covered in an insurance contract
is called the insured. The insured's requirements may differ depending on the type of
insurance. The main benefit of life insurance is basically protection against the risk of
death of the insured. The beneficiary will receive the sum assured. As a result, the
insured must be someone whose life the beneficiary depends financially (Pandawati,
2015). Some important things to consider in determining the criteria for the insured
a. Child As Insured. The insured child is the insured who has not reached legal age,
namely between 0 (zero) years and 17 (seventeen) years. There are also insured
children who have reached legal age but are not yet working and are still
economically dependent on their parents. Underwriters must pay attention to the
factors underlying the child's application to become the insured, including: a)
The applicant (policyholder) must be a person who is legally responsible for the
child, accompanied by legally valid evidence; b) The insurer can determine what
insurance products can be applied to the insured child; c) The insurer determines
the maximum sum insured that applies to the insured child; d) The insurer
determines the minimum age of the insured child.
b. Husband/ wife as the insured. Someone who is not actively working and not
earning a living outside the home is an economically dependent spouse. Spouses
who are actively working or productive must be insured under the type of
individual coverage to obtain the same sum assured.
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c. Parents as Insured. Life insurance contracts are long-term financial contracts.
Insurance is a guarantee to pay money in the future. Insurance only covers
financial or economic losses, not emotional losses. An adult who applies for life
insurance on behalf of an elderly mother, who is financially dependent on her
child, cannot be said to have an insurable interest because the insured mother
will not suffer a financial loss.
3) Beneficiary Assessment. The policyholder, insured and beneficiary all must have a
clear and reasonable financial interest in order to be insured. As long as the designated
heir is financially dependent on the insured, the insurable interest is acceptable even if
the heir is not a relative of the policyholder. Life insurance beneficiaries can be
individuals, trustees, corporations, charitable organizations, or other entities. It should
be noted that in order to receive a life insurance benefit policy, the beneficiary must be
alive at the time the risk occurs to the insured himself (Putri, 2020) .
Settlement of Problems Due to Negligence in the Underwriting Process in Life
Achievement of something that has been agreed before is what is expected by each
party in the insurance agreement. In the insurance agreement, of course, payment of
insurance claims to heirs is the most expected thing as a form of fulfillment of
achievements from the company. However, disputes in the insurance industry result from
the fact that insurance companies cannot respond to all claims in practice. The following
are some of the problems that ultimately result in the insurer not paying insurance claims,
a) Insurance Agent Fraud
To sell insurance, insurance companies employ intermediaries, or insurance agents
who will ask people to enroll in an insurance program offered by the insurance company
where they work. In general, a life insurance agent is someone appointed by an insurance
company to acquire new business and serve existing customers. An agent is a person who
acts on behalf of another person or represents another person in a relationship with a third
party known as the authorizer (in this case an insurance company). Even though the agent's
name is not listed in the insurance policy, each agent is authorized to act as an intermediary
on behalf of the insurance company for the prospective customer (the insured), basically
the agent has no legal relationship with the insured. However, this is what creates a
problem, because with this disengagement the agent sometimes fails to convey the
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participation of the prospective insured, and in the end the company is unable to fulfill the
claims submitted.
Each agent needs to have an agency license to protect customers from agents who
are naughty and commit fraud. This is done to prevent agents from directly or indirectly
committing fraud and involvement in criminal activities, such as: a) Engaging in
dishonesty or fraud; b) Misuse of customer funds (such as premium receipts), customer
funds must be deposited immediately, delays in depositing premiums from customers can
be considered as misuse of customer funds, insurance agents will face sanctions as stated
in article 21 paragraph (2) of Law Number 2 Year 1992, namely: "Anyone who embezzles
insurance premiums is threatened with a maximum imprisonment of 15 (fifteen) years and
a maximum imprisonment of 5 (five) years and a maximum fine of Rp. 2.500.000.000.-
(Two Billion Five Hundred Million Rupiah)"; c) Create fake documents or falsify official
documents. It is unacceptable to intentionally or unintentionally change the customer's
signature on documents related to any business. The agent will be subject to sanctions that
contained in Article 21 paragraph (5) of Law Number 2 of 1992 and Government
Regulation Number 73 of 1992 namely: "Anyone who individually or jointly falsifies the
documents of a loss insurance company or life insurance company or reinsurance
company, is threatened with a maximum imprisonment of 5 (five) years and a maximum
fine of Rp. 500.000.000.- (Five hundred Million Rupiah)".
b) Insurance Brokers
An insurance broker is a representative who sells insurance contracts and has been
authorized by an insurance company. However, the broker is not responsible for paying
claims because once the prospective client's information is returned to the insurance
company concerned, the responsibility also shifts to the insurance company. When the
form is returned, it is possible that there will be a lack of customer data or information, as a
result, insurance claims can be delayed or even rejected
c) Insurance policy
Insurance policies still allow the use of standard agreements in insurance
agreements. Insurance companies often do not show the general terms of the policy to
customers when closing, which causes customers to not understand the terms and
agreements. As a result, existing clauses are often detrimental to policyholders. Whatever
happens, the policyholder must comply with the guidelines of the insurance company
(Financial, 2007) .
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Underwriter Responsibilities and Legal Protection for Life Insurance Policyholders
In carrying out its duties, an Underwriter must make mistakes too. The Civil Code has
regulated responsibilities between employers and their employees. Confirmed in article
1367 of the Civil Code, if there is an error in fulfilling a claim in the Underwriting process,
the company must be responsible, because the Underwriter works for the company.
a) Legal Protection for the Insured According to the Civil Code
Regarding the interests of policyholders, there are several provisions in the Civil
Code, namely:
1. Article 1267 of the Civil Code can also be used as a legal role model in an
insurance agreement, whereby if the insurer has an obligation to provide
compensation in the form of an amount of funds to the insured party but there is
a default alias broken promise, then the policyholder is permitted to claim
compensation costs accompanied by interest;
2. The first principle in the agreement is the principle of binding force, which is
stated in Article 1338 of the Civil Code. When applied to insurance contracts,
this principle requires that the insured and the policyholder are obligated to
enforce the terms of the contract. The insured has a legal premise to sue the
insurer to complete the presentation. Second, the agreement builds trust between
the parties that they will carry out their commitments and achieve the goals as
promised, in accordance with the principle of trust. Third, the principle of good
faith, which stipulates that the parties must adhere to decency in implementing
the agreement.
b) Legal Protection for the Insured According to the Criminal Code
Several articles in the Criminal Code that can be used to protect the insured include:
a. Article 257 and Article 258 of the Criminal Code, it is stated "that an insurance
must be made in writing in a deed called a policy". In this case it is stated as if the policy is
an absolute prerequisite for drawing up an insurance contract. If we focus on Article 257 of
the Criminal Code, it will be seen that there is a contradiction with Article 255 of the
Criminal Code. However, this is not the case. According to Article 257 of the Criminal
Code, at the time the coverage agreement is made, the joint rights and obligations between
the insured and the insurer take effect immediately. That is, the insured still has the right to
claim compensation in the event of an event that was agreed upon, even though both
parties have closed the insurance agreement but did not make a policy. The insured must
use other evidence, such as insurance company correspondence, records, closing notes, and
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so on, to show that the insurance agreement has ended. Article 257 KUHD regulates the
making of insurance agreements, while Article 255 KUHD regulates the implementation of
rights and obligations for implementing insurance agreements
c) Legal Protection for the Insured under the Consumer Protection Act
For consumers in Indonesia, including insurance consumers, Law Number 8 of
1999 is contained in Articles 5 (five), 7 (seven, 8 (eight), and 9 (nine). Consumers are
required to read and follow the instructions for using goods/services, and obliged to act in
good faith and pay according to what was agreed.Then, the company is obliged to act in
good faith, provide honest information and provide compensation for misuse of goods/
1. Dispute Resolution Through Judicial Agency Study of Decision Analysis
Number 61/Pdt.Sus-BPSK/2018/PN Rap
So many cases of insurance disputes have occurred, therefore the author will
discuss a district court decision which also discusses this matter:
District Court Decision
Number 61/Pdt.Sus-BPSK/2018/PN Rap
Sit Case
PT Prudential Life Assurance, a limited liability company represented by Jens
Reisch having its address at Prudential Tower, Jl. General Sudirman, Kav. 79,
South Jakarta 12910; In this matter represented by attorneys Jhonshon Manik,
SH and Toshinory AP Siahaan, SH, Advocates and Legal Consultants at Andy
Natanael & Ridwan Law Firm (“ANR”), whose address is at Jalan Padang Golf
Komplek CBD Polonia Blok F-18 Medan, 20157, based on Power of Attorney
No. 153/PLA/LGL-POA/VIII/2018, dated 10 August 2018, which was registered
at the Registrar's Office of the Rantau Prapat District Court on 13 August 2018
Register Number: 226/SKC/2018/PN-Rap, hereinafter referred to as the
DARMIN RUMAHORBO, domiciled at PT. Partners", having its address and
office at Jalan Tangguk Bongkar VI No. 47 A Tegal Sari Mandala II Village,
Medan Denai District, Medan City, based on a Power of Attorney dated
September 1 2018, which was registered at the Registrar's Office of the Rantau
Prapat District Court on September 13 2018 Register Number:
273/SKC/2018/PNRap, hereinafter referred to as the Respondent;
Basis for filing an objection
a) Whereas the provisions of Article 3 paragraph (1) of the Republic of
Indonesia Supreme Court Regulation No. 01 of 2006 concerning Procedures
for Submitting Objections to Consumer Dispute Settlement Agency Decisions
(“Perma1/2006”), in essence states that objections to Consumer Dispute
Settlement Agency (BPSK) decisions are submitted to the District Court at
the place of consumer legal domicile, as well as Article 3 paragraph (3)
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Perma 1/2006 states that BPSK is not a party. Based on the provisions above,
this case is appropriate to be filed at the Registrar Office of the Rantauprapat
District Court because the legal domicile of the Respondent/Plaintiff is at PT
RSK S8, Kel/Desa Sennah, Pangkatan District, Labuhanbatu Regency;
b) Whereas the provisions of Article 52 letter l of Law Number 8 of 1999
concerning Consumer Protection ("UU 8/1999") states that BPSK has the
following duties: "Article 52: notifies decisions to business actors who violate
consumer protection. ….”
c) Whereas on August 2, 2018, in good faith the Petitioner/Defendant traced and
sought information directly to the Medan City Government Consumer
Dispute Settlement Board (“BPSK Medan”) regarding the notification of the
BPSK Decision not being submitted to the Petitioner/Defendant and in fact
the Petitioner/Defendant received information from BPSK Medan that as of
July 23 2018 it turned out that a copy of the BPSK Decision intended for the
Petitioner/Defendant had been taken by the attorney for the
Respondent/Plaintiff on behalf of Leo Chandra, SH, MH, even though in fact
the Petitioner/Defendant had never given power of attorney to take a copy of
the BPSK Decision for the benefit of the Petitioner/Defendant, so that the act
is against the law;
d) Whereas because the Petitioner/Defendant had not received a Copy of the
BPSK Decision from BPSK Medan as of August 1 2018 and the actions of
the Respondent/Plaintiff's attorney who took a copy of the BPSK Decision
intended for the Petitioner/Defendant, the Petitioner/Defendant through their
attorney sent Letter No. Ref. 251. AD. ANR. VIII. 2018 on August 1 2018 to
BPSK Medan, which basically asked for an official copy of the BPSK
decision; And
e) Whereas on August 8 2018, the Petitioner had received a Notification and a
Copy of the BPSK Decision from BPSK Medan which was sent through the
Registrar of the South Jakarta District Court. Whereas based on Article 5
paragraph 1 of the Supreme Court Regulation Number 01 of 2006 concerning
Procedures for Submitting Objections to Consumer Dispute Settlement
Agency Decisions, it stipulates that: "Objections are submitted within a
period of 14 (fourteen) days from the time Business Actors or Consumers
receive notification of BPSK's decision.”
IN THE EXCEPTION Rejects the Respondent's Exception in its entirety;
Accept and grant the objection of the Petitioner in its entirety;
Stating that the dispute between the Petitioner/Defendant and the
Respondent/Plaintiff is not a consumer dispute but a civil dispute;
Declare BPSK Medan is not authorized to examine the dispute between the
Petitioner/Defendant and the Respondent/Plaintiff;
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Declare Arbitration Decision Number: 28/ARB/2018/BPSK.Medan contrary
to law or at least state Arbitration Decision Number: 28/ARB/2018/BPSK.
Medan does not have binding legal force;
Punish the Respondent for objection to pay the court fee which until today
has been set at Rp. 390,500.00 (three hundred ninety thousand and five
hundred rupiah);
2. Author's Analysis of Decision Number 61/Pdt.Sus-BPSK/2018/PN Rap
The author's analysis of the decision Number 61/Pdt.Sus-BPSK/2018/PN Rap is
that the judge's decision in the ruling is not in accordance with the principle of
justice, where the judge should have examined in more detail regarding the fraud
committed. Is it really done by the insured or company agent. Because it needs
to be noted, what is generally accepted in the field, submitting a life insurance
letter is a lot of data entered by agents in the form of photocopies of KTPs, not
the original KTPs belonging to the insured, and what often becomes a habit in
the field that is done by insurance agents from a company is
PHOTOGRAPHING THE RESIDENCY CARD using his personal cell phone.
And in this dispute the plaintiff has also asked the defendant to be able to take
legal steps against the agent marketers who recruited the late M.Br. Gultom
entered into life insurance TO PROVE THE TRUTH OF WHO MADE THE
PERSONNEL (AGENT) Where previously the agent had met directly with the
insured and could see the physical aging of the insured who should not have
been registered for insurance because he was 70 (seventy) years old to the top.
And that the plaintiff can also see the existence of underwriting negligence and
in accordance with the regulations in article 1367 of the Civil Code, so that if
there is a claim involving an error in the underwriting process, the company will
be responsible, because the underwriter works for the company.
Choosing the potential risks of the insured until the occurrence of the policy is the
responsibility of the insurer at the time of closing the life insurance policy. The policy will
be the result of an agreement if all conditions are met. Insurance companies are responsible
for any mistakes made by Underwriters in carrying out their work. The company will be
held responsible if a claim arises due to an error in the Underwriting process by not
rejecting the claim submitted. The insurance company is required to evaluate the
Underwriting Operational Procedure Letter (SOP) and provide training to the Underwriter
to improve skills and knowledge in responding to mistakes made by an Underwriter.
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