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The Legal Consequences of Debtor Transfer Carried out under the Agreement, House Ownership Loans Putu Ayu Sriasih Wesna; Ida Bagus Dwi Jusarata; Johannes Ibrahim Kosasih
Jurnal Hukum Prasada Vol. 9 No. 2 (2022): Jurnal Hukum Prasada
Publisher : Magister of Law, Post Graduate Program, Universitas Warmadewa

Mortgage agreements often find cases, including the transfer of rights to the mortgage object, namely the house, which is carried out under the hands of the debtor to another party before the mortgage is paid off without the knowledge of the bank. This research aims to examine the validity of the house sale and purchase agreement on house ownership loans (KPR), through the debtor transfer process and to examine the legal consequences of the transfer of debtors carried out under the hands of a mortgage agreement, and also to examine the efforts have been taken by the bank to overcome it. This research used normative legal research. The results of this research showed that the transfer of debtors in general can occur with the knowledge of the bank and without the knowledge of the bank (under the hands). It can be concluded that the debtor transfer process is a form of sale and purchase agreement made between the old debtor, who is still bound by the bank credit agreement, and the new debtor. The process of transferring debtors legally must be carried out between three parties, namely the bank, the old debtor and the new debtor. The debtor transfer process must meet the requirements for a valid credit agreement, which is based on Article 1320 of the Civil Code. If there is a transfer of the debtor without the knowledge of the bank, legal remedies must be taken by the new debtor by filing a lawsuit against the old debtor and the bank to the District Court. This decision from the District Court which has permanent legal force (inkracht) is evidence of the existence of an agreement between the old debtor and the new debtor, and can be the basis for the bank to submit certificates and other documents to the new debtor. In order to avoid problems in the future, people who want to transfer debtors to mortgages can do so after obtaining approval from the bank as creditor.

Parate Eksekusi Pasca Putusan Mahkamah Kostitusi (MK) NO. 18/PUU-XVII/2019 Dan No: 02/PUU-XIX/2021 Terhadap Eksekusi Jaminan Fidusia Atas Lembaga Pembiayaan Leasin Johannes Ibrahim Kosasih; Anak Agung Istri Agung; Anak Agung Sagung Laksmani Dewi
Jurnal IUS Kajian Hukum dan Keadilan Vol. 10 No. 1: April 2022 : Jurnal IUS Kajian Hukum dan Keadilan
Publisher : Magister of Law, Faculty of Law, University of Mataram

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29303/ius.v10i1.971

Putusan Mahkamah Konstitusi No. 18/PUU-XVII/2019 tanggal 06 Januari 2020, merupakan sebuah putusan fenomenal yang menghapus kelembagaan parate eksekusi sebagaimana tercantum dalam Pasal 15 Ayat (2) dan (3) Undang-Undang Nomor 42 Tahun 1999 tentang Jaminan Fidusia. Terhadap putusan ini diajukan kembali oleh pihak ketiga dan diputus oleh Mahkamah Konstitusi dengan putusan No. 2/PUU-XIX/2021 tanggal 31 Agustus 2021. Kedua putusan tersebut mengeliminasi kedudukan parate eksekusi dalam Undang-Undang Nomor 42 Tahun 1999 tentang Jaminan Fidusia. Parate eksekusi merupakan legalitas yang dimiliki lessor dalam upaya melakukan eksekusi bila lessee wanprestasi. Kedudukan parate eksekusi sebagai pranata hukum jaminan pasca putusan Mahkamah Konstitusi merupakan permasalahan hukum dalam penarikan jaminan, yang secara yuridis belum dimiliki oleh lessee. Dari permasalahan diatas, maka tujuan dalam penulisan ini hendak mengkaji kedudukan parate eksekusi pasca putusan Mahkamah Konstitusi No. 18/PUUXVII/2019 dan No. 2/PUU-XIX/2021 terhadap hak eksekutorial lessor berdasarkan pranata parate ekekusi. Metode penelitian yang digunakan dalam penulisan ini adalah yuridis normatif dengan pendekatan perundang-undangan (statute approach) dan konseptual (conceptual approach). Hasil penelitian menunjukan bahwa kedudukan parate eksekusi sebagaimana diatur Pasal 15 Ayat (2) dan (3) UndangUndang Nomor 42 Tahun 1999 tentang Jaminan Fidusia telah dieliminasi dan eksekusi jaminan harus berdasarkan kesepakatan dengan debitur yang telah mengakui wanprestasi atau mengajukan permohonan pelaksanaan eksekusi kepada Pengadilan Negeri.

LAWSUIT FOR UNLAWFUL ACTS OF EXECUTION OF FIDUCIARY GUARANTEES IN LEASE ACTIVITIES Kosasih, Johannes Ibrahim
Journal Equity of Law and Governance Vol. 1 No. 2
Publisher : Warmadewa Press

Constitutional Court Decision No. 18/PUU-XVII/2019 dated January 6, 2020, caused a polemic in practice, both among legal experts and business people. The Panel of Judges of the Constitutional Court (MK) made a phenomenal decision which abolished the institution for the execution of guarantees listed in Article 15 paragraphs (2) and (3) of Law Number: 42 of 1999 concerning Fiduciary Guarantees or known as parate executions. Parate Execution is a preferential right for the lessor in financing leasing in the event that the lessee commits an act of default. The decision of the Constitutional Court (MK) stated that the lessor's action was declared as an unlawful act on the execution of the guarantee stated in the fiduciary guarantee law. The aims of this research are to examine the (1) unlawful acts in contractual relationships in leasing activities and (2) the decision of the Constitutional Court (MK) No 18/PUU-XVIII/2019 on the re-interpretation of the constitutionality of Article 15 paragraph (2) on the phrase â€œexecutory powerâ€ and â€œsame as a court decision that has obtained permanent legal forceâ€. This research is normative juridical with a conceptual approach, legislation and cases. The findings in the study explained that the panel of judges considered that the lessorâ€™s action in withdrawing collateral that legally still belongs to the lessor given based on the principle of trust (fiduciary) is an act against the law and ignores the contractual relationship that occurs between the parties.

PRUDENTIAL BANKING PRINCIPLES CONCEPTION IN BANK PICK UP SERVICE CASH SERVICE AGREEMENT IN AN EFFORT TO PROTECT CUSTOMERS BASED ON LEGAL CERTAINTY I Made Aditya Mantara Putra; I Nyoman Putu Budiartha; Johannes Ibrahim Kosasih
Journal Equity of Law and Governance Vol. 4 No. 1
Publisher : Warmadewa Press

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55637/elg.4.1.9449.63-75

In the modern world, the role of banking in the economic progress of a country is very large. Almost all sectors related to various financial activities must always require bank services. One of the services offered by the bank is the cash pick up service. In practice, this cash pick up service not only provides convenience to customers, but can be used by certain individuals to commit crimes. This study aims to find solutions and solutions to the vagueness of norms in Article 20A of Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector Jo. Law Number 10 of 1998 concerning Banking as well as seeking legal certainty and providing comprehensive protection for the parties involved. The formulation of the problems raised are: 1. What is the philosophical basis for regulating customer transactions in cash pick up service by banks in positive law in Indonesia?; 2. What is the concept of customer protection in transactions through cash pick up service based on the bank's prudential principle as a manifestation of legal certainty?; 3. What is the pickup service cash agreement model that accommodates the bank's prudential principles in an effort to reduce risk and provide protection for parties based on legal certainty in the future? The research method used is normative legal research with the type of statutory approach, conceptual approach, case approach and philosophical approach. The results showed that the philosophical basis for regulating customer transactions in cash pick up service by banks is based on trust, bank prudential principles, and legal certainty. The concept of protection for customers in transactions through cash pick up service reflects the concepts of bank prudence, fairness, transparency, privacy, complaint resolution, trust and legal certainty. A cash pick up service agreement model that accommodates the bank's prudential principles in an effort to reduce risk through the formulation of clauses containing the principles of prudence, risk management, force majeure, legal certainty, cash service specifications, operational provisions, responsibilities, dispute resolution, cash ownership, confidentiality, duration, and closing.

LEGAL PROTECTION FOR OUTSOURCED WORKERS IN WAGES IN COMPANIES IN INDONESIA Kadek Apriliani; I Nyoman Putu Budiartha; Johannes Ibrahim Kosasih; I Wayan Gde Wiryawan
Journal Equity of Law and Governance Vol. 4 No. 1
Publisher : Warmadewa Press

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55637/elg.4.1.9452.24-33

Regarding the wage system for outsourced workers in companies in Indonesia, it has not been clearly regulated in Indonesian laws and regulations (Empty Norms), meaning that there is no law that specifically regulates wages for outsourced workers, so there is a need for legal protection for wages of outsourced workers. Based on these problems, the legal issues raised in this research are to analyze (1) the philosophical basis for regulating wages for outsourced workers, (2) the form of legal protection for the wages of outsourced workers in companies in Indonesia, (3) the legal construction of the wage model for outsourced workers. power in companies in Indonesia. The research method used is the normative legal research method. The results of the research show that (1) the philosophical basis for regulating wages for outsourced workers is to show that the state must protect every citizen for the sake of realizing general welfare as stated in paragraph 4 of the preamble to the 1945 Constitution of the Republic of Indonesia. (2) the form of legal protection for the wages of outsourced workers Companies in Indonesia must comply with the rights and obligations of workers, where it is clear that the laws and regulations regulate workers' wages in accordance with the Provincial Minimum Wage (referred to as UMP) The form of protection that can be given to transferred workers if there is a dispute between the worker and the outsourcing company is preventive legal protection and representative legal protection, both non-litigation and litigation. (3) the legal construction of the wage model for outsourced workers in companies in Indonesia aims to provide legal protection for outsourced workers and to resolve empty norms in Law of the Republic of Indonesia Number 6 of 2023 concerning Stipulation of Government Regulations in Lieu of Law Number 2 of 2022 Concerning Job Creation Becoming Law. The empty norms occur because Article 88 which regulates wages does not clearly regulate the wages of outsourced workers.

RECONSTRUCTION OF BPHTB PAYMENT ARRANGEMENTS IN THE PROCESS OF BUYING AND BUYING RIGHTS TO LAND AND/OR BUILDINGS LINKED TO THE AUTHENTICITY OF PPAT DEEDS R.A. Nanik Priatini; I Nyoman Putu Budiartha; Johannes Ibrahim Kosasih; I Nyoman Alit Puspadma
Journal Equity of Law and Governance Vol. 4 No. 1
Publisher : Warmadewa Press

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55637/elg.4.1.9454.85-94

The problem that arises in this research is related to when Acquisition Duty of Right on Land and Building (BPHTB) payments occur and is related to the validity of the sale and purchase deed made by Lande Deed Officials (PPAT), which in this case is a problem, namely that there is a conflict of norms between Article 90 and Article 91 paragraph (1) of Regional Taxes and Regional Levies () Law. Based on these conditions, the legal issues raised are to examine and analyze (1) the philosophical basis of BPHTB in the process of buying and selling rights to land and/or buildings; (2) legal norms governing BPHTB payments in the process of buying and selling rights to land and/or buildings; and (3) reconstruction of BPHTB payment arrangements in the process of buying and selling rights to land and/or buildings legally. The research method used is the normative legal research method. The results of the research show that (1) The philosophical basis of BPHTB in the process of buying and selling rights to land and/or buildings is Pancasila and the 1945 Constitution of the Republic of Indonesia. The further philosophical basis is explicitly according to the General Explanation of the PDRD Law intended to encourage regional revenues and increase the effectiveness of BPHTB payments. Therefore, buyers of land rights are required to pay BPHTB first before a sale and purchase deed is drawn up by PPAT; (2) The legal norms governing BPHTB payments in the process of transferring rights to land and/or buildings through buying and selling are contained in Article 90 paragraph (1) letter a of the PDRD Law which conflicts with the norms of Article 91 paragraph (1) of the PDRD Law. The norm in Article 90 paragraph (1) letter a of the PDRD Law determines when the tax payable will be due to buyers of land rights. Meanwhile, Article 91 paragraph (1) of the PDRD Law requires buyers to pay BPHTB tax first before signing the sale and purchase deed before the PPAT. This is intended so that buyers comply with their obligations to pay BPHTB tax and to degrade the PPAT deed if it is signed before paying BPHTB tax, and (3) Reconstruction of BPHTB payment arrangements in the process of buying and selling rights to land and/or buildings legally can be carried out by amending the provisions of Article 91 paragraph (1) of the PDRD Law which allows buyers to have a sale and purchase deed made by PPAT, but PPAT is obliged to ensure that the buyer obediently pay BPHTB taxes. Novelty from the research is the reconstruction of Article 91 of the PDRD Law so that it is in accordance with Article 90 of the PDRD Law.

CONSTRUCTION OF THE EXECUTION ARRANGEMENTS OF LABOR RELATIONS COURT DECISIONS ON TERMINATION OF EMPLOYMENT RELATIONS IN THE TOURISM ACCOMMODATION FIELD BASED ON LEGAL PROTECTION Ryan Soma; I Nyoman Putu Budiartha; Johannes Ibrahim Kosasih
Journal Equity of Law and Governance Vol. 4 No. 1
Publisher : Warmadewa Press

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55637/elg.4.1.9455.95-107

This means that there is no law, including the PPHI Law, which specifically regulates the execution of Labor Relations Dispute decisions. As a result, workers affected by layoffs are not guaranteed legal protection with regard to the application of Labor Relations Dispute Decisions (also known as PHI Decisions) in layoff disputes. Instead, it is currently unregulated (empty norms). Based on these conditions, the legal issues raised in this research are to analyze (1) the nature of the execution of PHI decisions in layoffs at Tourism Accommodation Companies; (2) The usefulness and legal certainty of executing PHI decisions for workers at Tourism Accommodation Companies; and (3) construction of arrangements for the execution of PHI decisions to offer defense against layoffs at lodging and tourism businesses. Normative legal research is the methodology employed in this study. The research findings indicate that (1) Ensuring the protection of workers' fundamental rights, as well as equal treatment and opportunity without discrimination based on any basis, is crucial to carrying out PHI decisions related to layoffs at tourism accommodation companies. This is done while keeping an eye on advancements and ensuring the welfare of workers and their families. the business world, especially the tourism accommodation business; (2) The usefulness and legal certainty of the execution of PHI decisions for workers at Tourism Accommodation Companies which have permanent legal force must be able to provide benefits for workers who have been laid off so that the decision does not cause unrest and chaos in the lives of people seeking justice, especially groups of workers who were laid-off. The execution of PHI decisions does not yet have legal certainty because the company as the defeated party generally does not carry out the contents of the decision voluntarily. Apart from that, the execution norms have not yet been regulated; and (3) Construction of arrangements for the execution of PHI decisions to provide legal protection in the layoff process at Tourism Accommodation Companies is carried out in accordance with Article 57 of the PPHI Law to complete the empty norms in the PPHI Law. The empty norms are due to Article 57 of the PPHI Law which refers to the absence of civil procedural law, especially regarding the execution of PHI decisions.

Legal Protection For Cooperative Members in Standard Agreements On Digital Financial Services Ni Luh Putu Sri Laksemi Dharmapadmi; Johannes Ibrahim Kosasih; I Made Arjaya
International Journal of Law and Society Vol. 1 No. 3 (2024): July : International Journal of Law and Society
Publisher : Asosiasi Penelitian dan Pengajar Ilmu Hukum Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62951/ijls.v1i3.46

This research aims to examine the Legal Protection for Cooperative Members in Standard Agreements on Digital Financial Services as well as the Legal Protection provided to Cooperative Members if there are problems with Digital Financial Services. The legal research method used by researchers is normative legal research. Normative legal research uses legal behavioral products, for example reviewing laws. The results of this research show that the legal protection provided to cooperative members regarding standard agreements is preventive legal protection, namely creating regulations in this case standard agreements and repressive legal protection aimed at resolving disputes arising from legal consequences. The legal remedies that can be taken are Litigation and Non-Litigation.

Juridical Study of The Multi-Interpretation Clause of Tourism Agreements in The Digital Era Santhi, Ni Nyoman Putri Purnama; Kosasih, Johannes Ibrahim
West Science Interdisciplinary Studies Vol. 3 No. 05 (2025): West Science Interdisciplinary Studies
Publisher : Westscience Press

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58812/wsis.v3i05.1932

Tourism business contracts in the digital era often trigger disputes. This is because the parties involved in the business contract are subject to different legal systems. Apart from that, contracts signed by the parties still contain clauses that contain multiple interpretations. Contracts that should become law for the parties actually become a source of dispute. This research aims to conduct a juridical study of multi-interpretation clauses in tourism agreements in the digital era. This research uses a normative method by examining statutory regulations, books, journals, and articles relating to tourism business contracts and multi-interpretation clauses. The research results show that the existence of multiple interpretation clauses in tourism business contracts can trigger disputes that hinder the development of the tourism industry. Therefore, efforts are needed to draft clear and firm clauses and pay attention to legal harmonization so that tourism business contracts can provide legal certainty and protect the parties involved.

Juridical Study of The Multi-Interpretation Clause of Tourism Agreements in The Digital Era Santhi, Ni Nyoman Putri Purnama; Kosasih, Johannes Ibrahim
West Science Interdisciplinary Studies Vol. 3 No. 05 (2025): West Science Interdisciplinary Studies
Publisher : Westscience Press

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58812/wsis.v3i05.1932

Tourism business contracts in the digital era often trigger disputes. This is because the parties involved in the business contract are subject to different legal systems. Apart from that, contracts signed by the parties still contain clauses that contain multiple interpretations. Contracts that should become law for the parties actually become a source of dispute. This research aims to conduct a juridical study of multi-interpretation clauses in tourism agreements in the digital era. This research uses a normative method by examining statutory regulations, books, journals, and articles relating to tourism business contracts and multi-interpretation clauses. The research results show that the existence of multiple interpretation clauses in tourism business contracts can trigger disputes that hinder the development of the tourism industry. Therefore, efforts are needed to draft clear and firm clauses and pay attention to legal harmonization so that tourism business contracts can provide legal certainty and protect the parties involved.

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