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All Journal EKONOMIA Dinamika Teknik Mesin : Jurnal Keilmuan dan Terapan Teknik Mesin Mesin Journal of Physical Education and Sports Spektrum Sipil Global Legal Review Asian Journal of Health Research Jurnal Riset Ilmiah
KUSUMA WARDANI
STMIK AMIKOM Yogyakarta
Aerospace Engineering Automotive Engineering Biochemistry, Genetics & Molecular Biology Civil Engineering, Building, Construction & Architecture Economics, Econometrics & Finance Education Engineering Health Professions Immunology & microbiology Law, Crime, Criminology & Criminal Justice Mechanical Engineering Medicine & Pharmacology Physics Public Health Social Sciences Transportation Other

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Journal : Global Legal Review

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Parate Execution After the Indonesian Constitutional Court’s Judicial Review of Fiducia Law and Mortgage Law Wardani, Kusuma
Global Legal Review Vol 4, No 1 (2024): April
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v4i1.6628

Abstract

According to the Law No. 42 of 1999 on Fiducia Security (“Fiducia Law”) as well as the Law No. 4 of 1996 on Mortgage, if there is a breach of fiduciary guarantee and mortgage rights, the secured creditors can undertake a parate execution, as the expedient, simple and cost-efficient method by means of a public auction. However, the Indonesian Constitutional Court’s (MKRI) Decision Number 18/PUU-XVII/2019 has interpreted Parate Execution of Fiduciary Guarantee must firstly obtain the debtor’s consent that a breach has indeed occurred and the voluntarily surrenders of the guarantee object to the creditor. On the other hand, in the Decision No. 21/PUU-XVIII/2020, MKRI did not define the same process for Parate Execution of Mortgage Rights. From the substance point of view, the two MK verdicts provide a different interpretation of the principle of “pacta sunt servanda” and fiducia security. This has caused the execution of Fiduciary Guarantee becomes not easy, expedient and cost efficient any longer. This normative research attempts to analyse the legal and economic impact of the two verdicts and their implementation from a law and justice perspective. The results show the need of consistency in the implementation of Parate Execution for both. This means that an agreement regarding the existence of a breach is not required. In addition, if the debtor does not voluntarily surrender the guarantee object, then the creditor by law reserves the rights to seize the object. Arguably, it is necessary to amend the Fiducia Law in accordance with the MKRI’s Decisions, in line with the general principles of security in parallel with the principles of justice, legal certainty and utility.
Parate Execution After the Indonesian Constitutional Court’s Judicial Review of Fiducia Law and Mortgage Law Wardani, Kusuma
Global Legal Review Vol. 4 No. 1 (2024): April
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v4i1.6628

Abstract

According to the Law No. 42 of 1999 on Fiducia Security (“Fiducia Law”) as well as the Law No. 4 of 1996 on Mortgage, if there is a breach of fiduciary guarantee and mortgage rights, the secured creditors can undertake a parate execution, as the expedient, simple and cost-efficient method by means of a public auction. However, the Indonesian Constitutional Court’s (MKRI) Decision Number 18/PUU-XVII/2019 has interpreted Parate Execution of Fiduciary Guarantee must firstly obtain the debtor’s consent that a breach has indeed occurred and the voluntarily surrenders of the guarantee object to the creditor. On the other hand, in the Decision No. 21/PUU-XVIII/2020, MKRI did not define the same process for Parate Execution of Mortgage Rights. From the substance point of view, the two MK verdicts provide a different interpretation of the principle of “pacta sunt servanda” and fiducia security. This has caused the execution of Fiduciary Guarantee becomes not easy, expedient and cost efficient any longer. This normative research attempts to analyse the legal and economic impact of the two verdicts and their implementation from a law and justice perspective. The results show the need of consistency in the implementation of Parate Execution for both. This means that an agreement regarding the existence of a breach is not required. In addition, if the debtor does not voluntarily surrender the guarantee object, then the creditor by law reserves the rights to seize the object. Arguably, it is necessary to amend the Fiducia Law in accordance with the MKRI’s Decisions, in line with the general principles of security in parallel with the principles of justice, legal certainty and utility.
Co-Authors Achmad Zainuri Arif Mulyanto Arif Mulyanto, Arif Arin Khairunnisa, Arin Elmenes, Fika Ardyani Fadhilah, Ridho Fakhruddin Fakhruddin Gerawati, Adela Putri Jadid, Badru Nurchayati Nurchayati Pandri Pandiatmi pudholi, Yusup Arya Ramadhan, Bintang Aditya Rizky, Hafiz Rudy Sutanto Rustam, Najla Sinarep Sinarep Soekardi, Soekardi Wiyono , Teguh Yahya Irwanto Yusuf, Putri Sinta Nuriah