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All Journal Jurnal Ilmu Hukum KYADIREN
Jum Anggriani
Universitas Pancasila, Jakarta Indonesia
Law, Crime, Criminology & Criminal Justice

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The Borgtocht (Suretyship) Paradox in Bankruptcy: Guarantor Liability versus Ownership Rights Rahmandika Reinhardiyan; Jum Anggriani
Jurnal Ilmu Hukum Kyadiren Vol 8 No 2 (2027): Jurnal Ilmu Hukum Kyadiren
Publisher : PPPM, Sekolah Tinggi Ilmu Hukum (STIH) Biak-Papua

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.46924/pknfph18

Abstract

Debtor bankruptcy presents complex legal issues when third-party assets pledged as collateral under a borgtocht (suretyship) arrangement are included in the bankruptcy estate, even though the third-party owner has not been declared bankrupt. This study examines the legal status of third-party collateral assets and the forms of legal protection available under Indonesian bankruptcy and secured-transactions law. It employs a normative juridical research method using statutory, conceptual, and case-based approaches, with particular emphasis on Supreme Court Decision No. 476 K/Pdt.Sus-Pailit/2022. The findings demonstrate that liability arising from a borgtocht arrangement does not automatically transfer ownership of third-party assets to the debtor’s bankruptcy estate. Legal protection is available through verification of ownership, the filing of ancillary claims (gugatan lain-lain), and the exercise of available legal remedies, as further reinforced by Supreme Court Circular Letter No. 2 of 2024 (SEMA No. 2 of 2024). The study concludes that clearer limitations on the curator’s authority and more precise mechanisms for the execution of third-party collateral are necessary to ensure legal certainty and safeguard the property rights of non-debtor third parties.
Co-Authors Rahmandika Reinhardiyan