Permadi, Muhammad Rafi
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Prioritas Terbatas bagi Tagihan Pemulihan Lingkungan atas Aset Tercemar dalam Kepailitan Indonesia Permadi, Muhammad Rafi; Dewantara, Reka; Dewi, Amelia Sri Kusuma
Pena Justisia: Media Komunikasi dan Kajian Hukum Vol. 25 No. 2 (2026): Vol. 25 No. 2 (2026): Pena Justisia
Publisher : Faculty of Law, Universitas Pekalongan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31941/pj.v25i2.8337

Abstract

Environmental remediation claims rank as unsecured (concurrent) claims in Indonesian bankruptcy law, so the burden of remediation shifts to the state precisely when the polluter is least able to pay. The bankruptcy of PT Ricky Kurniawan Kertapersada illustrates this failure: a final and binding judgment of IDR 191,803,261,700, including IDR 147.058 billion in environmental restoration costs, confronted an estate distribution that offers no normative basis for giving it precedence. This article formulates a priority model that effectively secures remediation funding while remaining proportionate to other creditors, and is therefore viable in legislative politics. The study employs normative legal research with a prescriptive orientation and a functional comparison with the United States, Canada, and Sweden, followed by norm drafting and a four-stage proportionality test. The main finding is that no single instrument suffices. An effective system combines obligations that remain alive during bankruptcy proceedings, a priority limited to the affected assets, and ex ante financial assurance segregated from the estate. On that basis, the article proposes a four-tier priority model, namely environmental bankruptcy costs, a special privilege over affected assets, a general privilege over the residual claim, and ex ante safeguards, which passes the proportionality test because its impact on secured creditors is confined to assets whose risks they themselves failed to price. The article contributes concrete draft provisions for amending the Bankruptcy and Suspension of Debt Payment Obligations Law, together with a harmonisation map.