Legal Certainty Parate Execution of Fiduciary Guarantees After the Decision of the Constitutional Court Number 18/PUU-XVII/2019 (Material Examination of Article 15 Paragraphs (2) and (3) Law Number 42 of 1999 About Fiduciary Guarantee) (original) (raw)
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The existence of the Constitutional Court Decision Number 18/PUU-XVII/2019, made problems in society related to the implementation of the fiduciary guarantee execution. This study aims to determine and analyze the implementation of the Constitutional Court Decision Number 18/PUU-XVII/2019. The research method used is normative juridical by conducting document studies of legal principles, legal regulations and legal norms in Indonesia and interviews with civil law experts. The results showed that the decision of the Constitutional Court Number 18/PUU-XVII/2019, caused disagreements in its implementation. Prior to the Constitutional Court Decision, the execution of the Fiduciary Guarantee was based on the Fiduciary Guarantee Law, if the debtor in default, the Fiduciary Recipient can execute on the basis of the fiduciary recipient's own power to sell the object of fiduciary security, but with a Constitutional Court Decision it must go through a court. This creates confusion for creditors and is against the principle of material security. This is detrimental to creditors, because creditors cannot immediately sell their own fiduciary collateral objects if the debtor defaults. This phenomenon can lead to a lack of legal certainty and legal protection for fiduciary recipients and contradicts the nature of fiduciary guarantees which should have strong guarantee rights and are easy to implement.
Legal Consequences of Fiduciary Guarantee Execution Post Decision of Indonesian Constitutional Court
International Journal of Multicultural and Multireligious Understanding, 2021
Post Constitutional Court's decision regarding the 'executory power' of fiduciary guarantees which changed the rules of the execution of fiduciary guarantees, for those who are in debtor positions, the Constitutional Court's decision may be a solution to the problem of constitutional rights. However, for financing business actors as creditors, the decision is certainly a new obstacle in doing business. This study aims to analyze the juridical implications of the Constitutional Court's decision on fiduciary agreements made before the Constitutional Court's Decision (MK), as well as the juridical implications of fiduciary agreements or on fiduciary executions that have been carried out before the MK Decision Number 18/PUU-XVII/2019. This study found that the ratio of the decision of the MK Decision Number: 18/PUU/XVII/2019 Regarding Fiduciary Guarantees does not apply the principle of balance and has no legal consequences for the fiduciary guarantee agreement m...
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After the Constitutional Court Decision No. 18/PUU/XVII/2019 was issued, creditors can no longer forcibly withdraw the fiduciary guarantee without the result of the district court’s decision agreed by the creditors and debtors that a breach of promise occurred. The facts in the field are that debtors often make defaults. As a result, creditors must be more careful in executing fiduciary security. This study aims to determine what steps creditors must take to remain by legal corridors. Judges’ decisions must create justice, not only for the debtor but also for creditors’ interests. Creditor services are one of the factors. A large increase in the country’s economy, if creditors’ interests do not accommodate it, the judge’s decision is far from a sense of justice). This study also illustrates the creditor’s executorial power to the fiduciary guarantee deed. Based on normative legal studies, the researcher concludes that regulations to determine precise steps and simple mechanisms need...
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The execution of a fiduciary guarantee on the vehicle financing practice often creates problems even though the position of the recipients of the fiduciary guarantee is strong, as mentioned in Indonesia’s Law No. 42/1999. If the agreement is broken, the execution of the fiduciary guarantee can be carried out in three ways: (1) the execution through the executorial title, (2) the sale of the object of the fiduciary guarantee, and (3) the sale under the hand based on an agreement between the giver and the recipient of the fiduciary. After the Constitutional Court Decision No. 18/PUU-XVII/2019 is issued, there are additional provisions, namely agreement on the broken promise which needs to be included and voluntary submission concerning the object of fiduciary. This study was conducted on four automotive financing companies after the Constitutional Court Decision No. 18/PUU-XVII/2019, whose implementation was different. The type of this study was normative legal research with a descrip...
Executions of Fiduciaryry Guarantee Post Constitutional Court Decision No. Nomor: 18/Puu-Xvii/2019
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The background that underlies the conduct of this legal research is the existence of a conflict of norms, namely in the Fiduciary Guarantee Act, direct execution can be carried out if the debtor has committed an injury (also called default), but in the Constitutional Court ruling Number: 18 / PUU-XVII / 2019 This is done immediately after the debtor is injured but requires a statement of voluntary interest from the debtor or through a judicial decision. The problem in this research is related to the essence of the execution of fiduciary guarantees, the development of the fiduciary guarantee execution arrangements before and after the Constitutional Court decision Number: 18 / PUU-XVII / 2019 the implications of the Constitutional Court decision Number: 18 / PUU-XVII / 2019 on the principles of simple, fast, and low cost. The type of research used in this research is juridical normative, using a statutory approach and a case approach, as well as primary and secondary legal materials ...
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Fiduciary guarantee is one of the specific material guarantees that develops in practice. Since the promulgation of the provisions of Law No. 42 of 1999 concerning Fiduciary Guarantees, officially the fiduciary obtains certainty regarding the mastery of moving objects in the hands of the debtor. One certainty regulated by Law No. 42 of 1999 concerning Fiduciary Assurance is a matter of execution where creditors can choose the execution model that is considered to be the most beneficial for both parties. One of the rights of the creditor if he considers the debtor to be in breach of promise is to make a direct withdrawal to the debtor of the object of guarantee and if necessary requesting the assistance of the security apparatus is a breakthrough and convenience provided by the provisions of Article 30 of Law No. 42 of 1999 concerning Fiduciary Guarantees. This direct withdrawal will certainly be a problem if the object of collateral is used for productive purposes which results in the debtor not being able to run his business because he has lost the object of guarantee in a fiduciary agreement. This study aims to identify, understand and analyze the ratio legis of fiduciary guarantee execution as stipulated in article 30 of Law No. 42 of 1999 concerning justice-based Fiduciary Guarantees and the form of regulation of protection of the rights of debtors with productive credit towards the execution of fiduciary guarantees according to the provisions of article 30 of Law No. 42 of 1999 Of Justice-based Fiduciary Guarantees. This study is normative research by carrying out several approaches, namely the legislative approach, case approach, historical approach, and comparative approach. The results of this review reveal that the beginning of the purpose of the Act No. 42 of 1999 concerning Fiduciary Guarantees is in the context of fulfilling capital through an object as a guarantee object, but in its development credit is also intended for satisfying needs or nonproductive, so that the treatment between productive credit and productive credit is necessary where productive loans should be provided (stay) or the opportunity to be able to pay off the debt, even though the distribution limit has ended or in other words the creditor does not directly use his right to execute the object of fiduciary collateral directly as stipulated in article 30 of Law No. 42 of 1999 concerning Fiduciary Guarantees without providing the opportunity for productive debtors to repay their debts.
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