Settlement of Bad Loans with Guarantee of
Dependent Rights at Banks and Auction Houses Based on the Law on Dependent
Rights No.4 of 1996 (Case Study: Decision No.550/Pdt/2019/PT MDN)
Mohamad
Ariza Al Ghani, Hanafi Tanawijaya
Tarumanagara University, Jakarta, Indonesia
Email: arizachelsea@gmail.com, hanafitanawijaya@gmail.com
Abstract
The interaction between economic development and
the banking sector, particularly in the provision of credit, is crucial, with
the resolution of non-performing loans (NPLs) being a significant issue. This
study, titled "Resolution of Non-Performing Loans with Collateral Rights
in Banks and Auction Houses," aims to investigate the mechanisms for
resolving NPLs through the execution of collateral rights as stipulated by Law
No. 4 of 1996. Utilizing Verdict No. 550/Pdt/2019/PT MDN as a case study, the
research employs normative and legal analysis methods to explore the
implementation of collateral rights in the auctioning of collateral assets when
debtors default on their loans. The findings reveal the legal procedures and
effectiveness of collateral execution in mitigating NPLs. The study concludes
that the proper application of collateral rights laws can significantly aid in
resolving NPLs, with implications for improving banking sector stability and
credit recovery processes.
Keywords: Auction, Bad Credit, Legal Procedures, Mortgage Rights
Introduction
In Indonesia, credit agreements in the banking sector are
governed by Bank Indonesia Circular Letter No. 02/643/UPK/Pemb. Dated October
20, 1966, Juncto Circular Letter of Bank Indonesia Unit I No. 2/539/UPK/Pemb. Dated
October 8, 1966, Juncto Cabinet Presidium Instruction No. 15/EK/10 dated
October 13, 1996. Based on Law No. 10 of 1998, credit agreements often include
material guarantees, positioning the creditor as a preferred creditor.
In insurance law,
the insured object is always tangible and can be valued in money, like a house,
boat, or vehicle
The Right of
Dependency (Hak Tanggungan) is a security right over land as stipulated in Law
No. 5 of 1960 concerning Basic Agrarian Law for the repayment of certain debts,
giving priority to specific creditors over others
The auction
process for the Right of Dependency, governed by KPKNL, follows the concept of
Parate Executive, allowing creditors to sell the object without court approval
From a banking
perspective, every credit issued involves risk, necessitating security
components like guarantee agreements
Based on the explained
background, the author formulated a study entitled "Settlement of Bad
Loans with Guarantee of Dependent Rights at Banks and Auction Houses based on
Law Number 4 of 1996 concerning Dependent Rights (Case Study: Decision
No.550/Pdt/2019/PT MDN)." This research aims to provide solutions to
previously identified problems. The objectives of this research are to provide
a comprehensive understanding of the legal procedures and processes involved in
the auction of debtor assets based on Law Number 4 of 1996 concerning Dependent
Rights (UUHT) and to describe the mechanisms for resolving non-performing loans
(NPLs) through the utilization of collateral rights in credit agreements. By
examining these aspects, the study aims to elucidate the practical application
of collateral execution in mitigating NPLs and to offer insights that could
enhance the effectiveness of credit recovery practices. This research seeks to
contribute both theoretically and practically, serving as a valuable reference
for future academic work and providing actionable knowledge for banking professionals,
legal practitioners, and policymakers.
The purpose of
this study is to understand the process and procedures in the implementation of
the debtor's asset auction based on Law Number 4 of 1996 concerning Dependent
Rights, as well as to describe the settlement of bad loans with the guarantee
of dependent rights in credit agreements. Theoretically, this research is
expected to be a reference source for writing other scientific papers related
to the topic, as well as a forum for developing new insights, information, and
perspectives. Practically, this research is expected to broaden the author's
insight into the procedure for settling bad loans with guaranteed dependents,
as well as contribute to the development of more in-depth science in the
university environment and for future researchers.
Research Methods
This research employs a
normative-empirical legal approach to provide an in-depth understanding of the
settlement of bad loans with the guarantee of dependent rights in banks and
auction houses, as stipulated by Law No. 4 of 1996 concerning Dependent Rights.
The combination of normative and empirical elements is crucial for
comprehensively analyzing both the theoretical legal framework and the
practical implementation of laws related to credit agreements and collateral
execution. The normative approach focuses on the analysis of existing legal
regulations, judicial decisions, and relevant literature to establish a
theoretical foundation. This aspect of the research ensures a thorough
understanding of the legal principles and statutory provisions governing dependent
rights and the auction process. It also helps identify any legal
inconsistencies or gaps that might affect the practical execution of these
laws.
On
the other hand, the empirical approach involves the collection and analysis of
primary data through direct interactions with stakeholders involved in the
execution of collateral object coverage. This method provides insights into the
real-world application of the legal provisions and highlights any practical
challenges faced by banks and auction houses in the settlement of bad loans. The
choice of a normative-empirical approach is driven by the need to bridge the
gap between legal theory and practice. By integrating empirical data, the
research can offer a more nuanced understanding of how legal provisions are
implemented and the effectiveness of these implementations in achieving the
intended outcomes.
Data
collection is conducted through purposive sampling techniques, which involves
selecting respondents who are directly involved in the process of collateral
execution. This method ensures that the data collected is relevant and specific
to the research objectives. The purposive sampling technique is particularly
suitable for this study as it allows for the selection of key informants, such
as banking professionals, legal practitioners, and officials from auction
houses, who can provide valuable insights based on their expertise and
experience. The research specification is descriptive-analytical, aiming to
provide a comprehensive overview of legal and policy arrangements related to
the execution of debt collateral. The descriptive aspect of the study focuses
on documenting the existing legal procedures, while the analytical component
evaluates the effectiveness and challenges of these procedures.
The
data analysis is conducted using a qualitative approach, emphasizing an
in-depth exploration of research events and processes. This method allows for a
detailed examination of the practical aspects of collateral execution and the
identification of any discrepancies between the theoretical legal framework and
actual practice. The writing systematics are organized into five chapters:
introduction, literature review, research methodology, findings and discussion,
and conclusion. This structure ensures a logical flow of information, guiding
the reader from the background and theoretical framework to the empirical
findings and final conclusions.
Results and Discussion
A. Analysis of the Procedure for Implementing the Debtor's Asset Auction according to Law Number 4 of 1996 concerning Dependent Rights.
1.
Auction of Objects of Dependent Rights Based on
the Law and Constitutional Court Decision Number 21/PUU-XVIII/2020
Based on Article 26 of the UUHT,
which reads:
"As long as there are no laws
and regulations regulating it, taking into account the provisions in Article
14, the regulations regarding the execution of hypotheses that exist at the
beginning of the entry into force of this Law apply to the execution of the
Right of Dependency."
Article 26 explains
that as long as there is no regulation regulating the object of the right of
dependency and its execution, the regulation uses mortgage provisions and/or
uses Article 224 of the Criminal Code. The object of mortgage and
credietverband only includes land rights and does not include objects attached
to the land, such as buildings, plants, and everything on the land. The matter
regarding the separation of land with its contents refers to the horizontal
principle, which explains that the ownership of land rights apart from the
rights to goods on the land is separate and can be two different subjects. The
nature of this horizontal separation principle is adopted from customary law
rights but is maintained according to the needs of the community in today's
era. However, from the explanation based on the Law on Dependent Rights, the
objects that can be encumbered with Dependent Rights are the rights to land and
objects related to land. In articles 4 to 7 of the Law on Dependent Rights
Number 4 of 1996, it is explained that the rights to land that can be
encumbered by the Dependent Rights are as follows:
1) Proprietary.
2) Right of Use.
3) Building Use Rights.
4) According to applicable provisions, the Right to
Use State Land must be registered and, by its nature, can be transferred.
5) Rights - Rights to land and buildings, plants,
and works that have existed or will exist as one unit with the land and belong
to the land-right holder. In this case, the burden must be expressly stated in
the Deed of Grant of Dependent Rights concerned.
The object of the
right of dependency, according to the interview mentioned above, is a guarantee
related to an individual is guarantee handed over to the creditor in the form
of debtor assets as a profit item for the repayment of the debt and receivables
credit agreement, according to Mrs. Cosinta in the regulation from the OJK
regarding credit guarantees that have been implemented at BANK CIMB Niaga, the
current guarantee of the right of dependency should not only be land but land
that includes buildings in one unit and in one owner's name.
According to Prof.
Boedi Harsono in his book on Indonesian Agrarian Law, which includes a set of
land law regulations which states that basically land rights can be used as
collateral objects, but if land rights can be used as collateral objects, the
debts and receivables must meet several conditions as follows:
a) It can be valued in money because the debt that
is guaranteed is in the form of cash.
b)
Including
rights registered in the general register because they must meet the publicity
requirements.
c)
It has a
transferable nature because if the debtor is injured, the promise of the object
that is used as collateral for the debt will be sold in public.
d) Requires appointment by law.
Based on the
description of Article 6 and Article 20 paragraph (1) of the UUHT, it can be
understood that in the execution of the object of the right of dependency is an
authority given by the law related to the holder of the right of dependency to
execute the sale of collateral assets through the public auction method, in
authority given by the law, the execution through this auction does not require
approval from any party so that in its implementation in executing through this
execution parate must comply with the existence of an agreement regarding
default, as stipulated in Article 1178 paragraph (2) of the Criminal Code so
that it is an implementation of an agreement and is equipped with a gross
mortgage deed that is "For Justice Based on the One Godhead."
Based on an
interview from Mr. Fandy Novitzo Adistyo S.H., M.Kn, Grosse, the mortgage deed was made by
the Notary also with the standard irah-irah "After being read in front of
the parties, I am a notary to sign this deed," from this provision the
object of the right of dependency has legal certainty to carry out its
execution. The article on the execution parate also explains that the execution
of the auction of the object of guarantee is not related to the executory title,
which means that the subject matter is separated and can not only be carried
out through the executory title alone so that it does not require an execution
fiat from the chairman of the court.
Apart from efforts
to parate the execution of the object of the Dependent Rights, it can also be
based on the executory title as in the certificate of the right of dependents.
The certificate of the right of dependency can be the basis for the execution of
the Right of Dependency. In addition to serving as a debt acknowledgment and
proof of the existence of the right of dependency, the certificate of right of
dependency is also helpful as a basis for the execution if the debtor is
injured in the promise. With what can be used as evidence that the debtor
defaults in fulfilling its contractual obligations, the holder of the
certificate of dependent rights can submit an application for execution to the
Chairman of the Court concerned as the basis. The execution will be carried out
on order and with the leadership of the Chairman of the District Court through
a public auction conducted by the KPKNL.
Based on Article 14
and Article 26 of the UUHT, the certificate of the right of dependency and the
deed granting the right of dependency have the power to carry out the execution
based on the executory title. In this case, the creditor requests the
determination and implementation of the auction from the chairman of the court
and acts as the seller as follows the civil procedure law in the implementation
of the execution of the hypothec era as long as no new provisions have been
made regarding the execution of the right of dependency. In an interview with
Mas Kevin, he said that the provisions of Article 14 paragraphs (1) and (2) of
the Law on the Rights of Dependents make the provisions of Article 6 of the Law
on the Rights of Dependents seem to be uncertain, because the certificate of
the Rights of Dependents is affixed with irah-irah or an executive title. So,
it is as if the execution is subject to Article 224 of the HIR, which must go
through the assistance of the court.
If you look deeper,
Article 224 does not require execution through the court, and this article
stipulates that if the execution cannot be carried out voluntarily by the
debtor and creditor, then the creditor can ask for court assistance. In
essence, the certificate of dependent rights has the same executory force as a
court decision that has permanent legal force and can be carried out
voluntarily. In other words, the holder of the guarantee of the right of
dependency can execute the guarantee of the right of dependency that he or she
controls in a situation as if there had been a court decision with permanent
legal force. It should be remembered, in principle, that the execution of a new
engagement can be carried out if there is a court decision with permanent legal
force.
But just like a
court ruling, in practice, it can be executed or executed voluntarily, but
sometimes the debtor (who receives the sentence) does not want to carry it out
voluntarily, so the creditor (who is justified by the judgment) has to ask the
court for help. Actually, Article 11 paragraph (2) letter e of the UUHT
provides an option for the problem of voluntary execution or self-execution
(parate execution) by creditors, namely by being expressly agreed that the
debtor gives the right to the holder of the right of dependency to sell the
object of the right of dependency himself if the debtor defaults. However, in
practice, there will always be debtors who do not voluntarily admit that they
have defaulted and voluntarily give up their bail to be executed. For this,
creditors must finally ask for court help.
The Constitutional
Court's decision, hereinafter referred to as Constitutional Court Number
21/PUU-XVIII/2020, is explained regarding the application for a test case,
material testing of the phrase "executory power" and the phrase
"the same as a court decision that has obtained permanent legal
force" in Article 14 paragraph (3) and the word "injury of
promise" in Article 20 paragraph (1) of Law Number 4 of 1996 concerning
Dependent Rights on Land and Objects Related to Land (Dependent Rights Law)
against The 1945 Constitution of the Republic of Indonesia (1945 Constitution).
The Constitutional Court has the authority to test laws that are not in
accordance with the 1945 Constitution or, in its application, are not of much
benefit to the broader community, and the Constitutional Court also has
judicial power in the courts of first instance to the court of the last level
and the decisions handed down by the Constitutional Court are final, which is
the legal basis for the authority of the Constitutional Court is Article 24
paragraph (2) of the 1945 Constitution stating that:
"Judicial power is exercised by
a Supreme Court and the judiciary under it in the general judicial environment,
the religious judicial environment, the military judicial environment, the
state administrative, judicial environment, and by a Constitutional Court."
Article 24C
paragraph (1) of the 1945 Constitution states that:
"The Constitutional Court has
the authority to adjudicate at the first and last level whose decision is final
to test the Law against the Constitution, decide disputes over the authority of
state institutions whose authority is granted by the Constitution, 2 decide the
dissolution of political parties, and decide disputes over the results of
general elections".
Article 9 paragraph
(1) of Law Number 12 of 2011 concerning the Establishment of Laws and
Regulations as amended by Law Number 15 of 2019 concerning Amendments to Law
Number 12 of 2011 concerning the Establishment of Laws and Regulations states
that:
"In the event that a law is
suspected to be contrary to the Constitution of the Republic of Indonesia in
1945, the test is carried out by the Constitutional Court."
From the legal
foundations of these authorities, the Constitutional Court was formed as an
institution that safeguards the state constitution (The Guardian of
Constitution), which has the right to provide interpretation of the provisions
of articles in the law in accordance with the foundation of the fundamental
values of state law, namely the constitution and its implementation in society
is also helpful and can protect its subject reasonably. Then, regarding the
testing of Article 14 paragraph (3) and Article 20 paragraph (1) of the Law on
the Rights of Dependency against the 1945 Constitution, the Constitutional
Court is fit and authorized to examine, adjudicate, and decide on the
application for testing.
The conclusion from
the description of the judge's consideration and the result of the
Constitutional Court judge's decision, the legal concerns are clear that the
norm of Article 14 paragraph (3) of the Law on the Right of Dependency does not
eliminate the debtor's constitutional rights because the components that are
the nature and characteristics of the right of dependency are inseparable from
the criteria inherent in the right of dependency which is a formal condition
that is fundamental and absolute. Meanwhile, the conditional application of the
phrase "executory power" and the phrase "the same as a court
decision that has obtained permanent legal force" desired by the
Petitioners is an additional condition whose implementation can be supported in
the space of freedom of contract, which is one of the conditions for the
validity of an agreement. That is, the existence or absence of a credit
agreement in a state of force (overmatch/force majeure) in the agreement, in
fact, does not reduce the debtor's constitutional right to be able to pursue
legal remedies by filing a resistance or lawsuit in court by postulating the
existence of a force majeure (overmatch/force majeure) and this can also be the
basis of a creditor's reason, or execution through the assistance of the
chairman of the district court or the auction office to delay the execution of
the guarantee of dependent rights.
From the arguments
submitted by the Constitutional Court, it is clear that concerns about the
position of debtors in general and their implementation can be supported to be
included in the substance of the agreement before the parties make a credit
agreement. By adding a clause in terms of the deal which has been agreed upon
by the parties, which is a form of actualization of the principle of freedom of
contract, which is one of the conditions for the validity of an agreement
referring to article 1320 of the Civil Code which has been explained, then
based on article 1337 of the Civil Code as long as it does not conflict with
morality, public order, and the laws and regulations of the agreement binding
the parties who make the agreement, In
other words, the engagement agreement can be the basis of rules or guidelines
for the parties who make it (Pacta Sunt Servanda Principle).
Thus, if a problem
arises in the future for the sake of legal certainty, then the parties who feel
that their rights are aggrieved can resolve the issue until the court has a broader
scope in resolving civil disputes. So that in the context of the Petitioners'
application in the material test, before there is a plan to implement the
execution of the dependent rights, the parties, especially the debtor, can get
legal certainty and justice by resolving both deliberations and legal efforts
against the lawsuit/lawsuit to get a court decision before the execution of the
dependent rights is carried out so that there is legal certainty in its
implementation. Likewise, if the debtor and the creditor do not make a
compelling circumstances clause as one of the clauses in the agreement, it does
not mean that the debtor loses his right to the opportunity to exercise his
rights until he files a resistance/lawsuit in court.
The process of
self-defense of the debtor, and if it comes to legal remedies for
resistance/lawsuit, then it can also be the basis for postponing the execution
by creditors, including those through the assistance of the chairman of the
district court and/or the auction office. Even if the covenant agreement
between the debtor and the creditor does not explicitly stipulate the
circumstances of force as already explained, the creditor, whether using the
fiat of execution assisted by the court or the right of parate of execution,
will still go through the process and stages of not arbitrarily utilizing the
power of law to waive the rights of the debtor,
Within its scope, the parate of execution must also carry out stages
without ignoring rules and regulations, for example giving a warning letter
(ammaning), then the stage of summons, restructuring, to the stage in the
execution of confiscating collateral assets to submitting a letter of
application to the government auction institution, namely KPKNL.
From the process of
these stages, it can be seen that the debtor is always involved in every
implementation, especially in the early stages. The debtor has the opportunity
to defend himself before leading to execution using the parate method of
execution or fiat execution from court assistance. Furthermore, apart from the
stages of execution described above, the execution auction can also be carried
out by auction under the hands agreed by both parties based on Article 20
paragraph (2) of the UUHT if the method benefits both parties at a higher
price, then the creditor does not hesitate to agree to the agreement as long as
the debtor does have the intention to make a good faith repayment.
It needs to be
emphasized based on the description explained based on the Constitutional
Court's decision regarding this material test, the debtor's concern regarding
the absence of the meaning of the phrase "executive power" that
regulates the authority of the creditor in the execution of the guarantee with
fixed legal force with the phrase "the same as the court decision" or
by parate the execution which is detrimental to the debtor, because in the
process of its implementation using conditions, what is often given from the
debtor's point of view is not Reasoned. Moreover, these considerations can also
answer that the problem is not in the debtor's constitutional rights but in the
application of clauses in the credit treaty agreement, as already mentioned.
Besides that, based on Article 1865 of the Criminal Code, the debtor can take
maximum legal remedies even in the absence of the agreed clause.
B. Analysis of the Procedure
for Implementing the Debtor's Asset Auction according to Law Number 4 of 1996
concerning Dependent Rights.
1. Stages
and Positions of UUHT and PMK Number. 27/PMK.06/2016 in the Implementation of
the Auction.
In practice, bad
loans cannot be avoided even though banks have applied the principle to first
screen prospective debtors, analyze the financial statements of prospective
debtors, look at the ability and capacity of prospective debtors, and the economic
conditions of prospective debtors. The situation where the debtor is unable to
pay the bank credit on time is no longer common. After the creditor or the bank
gives a warning letter to the debtor, it is undoubtedly expected to produce
results through settlement with a negotiation process in the context of
settling the debt. However, these warnings often do not give results, so the
last step to resolve bad loans that can be done by creditors is to auction the
debtor's assets that have been pledged with liens in accordance with the
certificate of lien rights.
The implementation
of the execution auction can only be carried out by class I auction officials
who are domiciled in KPKNL. The procedure for executing the right of dependency
begins with an official notification to the debtor, as it has been explained that
the creditor will provide an opportunity for the debtor to make payments to
avoid auctioning his assets. Banks have legal rights to assets that are
collateral for the execution of the auction, which must be based on PMK
No.106/PMK.06/2013 concerning Auction Implementation Guidelines to avoid errors
in the auction implementation process. The following are the stages of the
auction carried out by KPKNL:
2. Pre-Auction Stage/Auction Preparation
The pre-auction
stage (before the auction transaction occurs) is the handling of orders, which
includes collecting and recording goods, assessing goods, and marketing. Several
things must be carried out in the preparation of the pre-auction for the smooth
implementation of the auction. This is to avoid the possibility of legal
disputes in the future. Some of the activities include preparations which
include the completeness of documents and application letters containing
auction requirements according to the type of auction which is then submitted
to the head of KPKNL to get a schedule for the auction to be held, in the
schedule KPKNL gives freedom in determining the time and place related to its
implementation as long as the place is still in the KPKNL work area and is also
carried out on KPKNL working days, then
in submitting an application based on PMK No.27/PMK.06/2016 and No.
213/PMK.06/2020 the auction implementation must be preceded by an announcement
as one of the legal requirements as the legal basis for the auction itself, the
seller submits proof of the announcement that has been announced through the
national official mass media and/or published in the provincial or regency/city
daily newspaper containing the seller's identity, the type and number of auctions, the time and
place of the auction, the specifications of the goods that are specifically for
movable goods, the location intended for the type of immovable goods, the limit
value of the goods, the time and place to see the goods to be auctioned, the
period for the obligation to pay the auction by the buyer and the bidding
method of each type of auction.
3. Auction Implementation Stage and Post-Auction
The auction hall,
as the applicant and attorney of the owner of the goods, can enter into a civil
agreement with the Class I or Class II Auction Officer in accordance with PMK
No.27/PMK.06/2016. Auction officials have essential duties in the
implementation of the auction, including reading the auction minutes, leading
the auction in an orderly, fair, safe, and smooth manner, and determining the
auction winner. Before the auction begins, the auction participants or their
proxies are allowed to submit bids, which are then collected by auction
officials to determine the winner. After the auction, the auction hall carries
out the process of shipping goods and managing the renaming of goods in
accordance with applicable regulations.
The payment process
is an essential stage in the auction. Buyers must pay off the auction amount
and auction duties within a maximum of five working days after the auction is
held. If the buyer does not pay within the specified deadline, a warning letter
will be issued to pay off within 24 hours. If the payment is still not made
after the warning letter, the buyer's status will be canceled and reported to
the DJKN. Payment must be made in the form of cash or cheque/giro accompanied
by proof of payment. This entire process is regulated by PMK
No.106/PMK.06/2013.
In the execution of
the auction to guarantee dependent rights, PMK is the legal basis for
regulating the auction implementation procedure. Although the law does not
explicitly regulate the implementation of auctions, PMK is often used to
regulate auction procedures, including registration requirements,
implementation periods, and the distribution of sales proceeds. The position of
PMK in auction execution depends on the applicable positive law, where PMK can
have valid legal force if it is based on the authority granted by higher laws
and regulations.
C. Analysis of Bad Loan
Settlement with Guarantee of Dependent Rights in Credit Agreement between the
Debtor, the Bank, and the Auction House.
1.
Authentic Deeds
Based on Article
1868 of the Civil Code, an authentic deed is a document that is made in
accordance with the standard of form set by law and attended or made in front
of authorized public employees. To be considered authentic, a deed must meet
two main conditions: it must conform to the format prescribed by law and be
witnessed and legalized by an authorized public official. If an authentic deed
is made by an unauthorized official or does not meet the provisions of the law,
it will not be considered valid. In the context of civil law, an authentic deed
has evidentiary solid power in the eyes of the law and cannot be rejected in
court as long as it meets specific requirements. There are three levels of
evidentiary power in an authentic deed, namely external, formal, and material
evidentiary power. The power of outward proof states that a document that
physically looks like a deed will be considered an authentic deed until there
is evidence to the contrary. Formal power of proof provides guarantees about
the correctness of the date, contents, and signatures in the deed but is only
guaranteed between the parties involved. Meanwhile, the power of material proof
provides verification that the parties are really present and explains
something stated in the deed
2.
Deeds Under Hand
The deed under
hand, in accordance with Article 1874 of the Civil Code, is a document that is
directly signed by the parties involved, including letters, lists, or other
documents, without the intervention of public officials. It is usually used in
agreements such as sales, rentals, etc., which are signed by all parties
involved without the need for the intervention of public officials. There are
formal and material requirements that must be met, including legal information
in the deed and the purpose of its use as evidence. The validity of the deed,
both authentic and underhand, depends on the fulfillment of the conditions of
the validity of the agreement. Notaries have an important role in the
preparation of a deed of agreement, providing legal certainty and the highest
power of proof, especially in banking transactions and asset guarantees.
Although not always necessary, the use of notary services is usually advised by
parties in need. The reason why banks require the creation of a deed with a
notary is so that the deed has sufficient executory power.
D. Analysis of Bad Loan
Settlement with Guarantee of Dependent Rights in Credit Agreement between the
Debtor, the Bank, and the Auction House.
Regulations related
to credit extension, restructuring, and execution efforts through debtors refer
to the provisions regulated by Bank Indonesia and the Financial Services
Authority (OJK). Bank Indonesia, through Regulation No. 14/15/PBI/2012 Article
52, sets the criteria for credit restructuring, while OJK, through Regulation
No. 11/POJK.03/2015 regulates various efforts to rescue bad loans. These rescue
efforts can be carried out through various means, such as rescheduling,
re-requirements, restructuring, and rescue through legal channels. However, the
sale of the object of guarantee of dependent rights by the debtor on the basis
of good faith is not specifically regulated in the law, so this can be a legal
debate. In practice, the sale of the collateral object can be made with the
approval of the creditor, which is advantageous if both parties have good
intentions. If done in good faith, this sales process has advantages such as
cheaper costs, faster processes, high potential selling prices, good social
impact, and smaller potential lawsuits. However, this process still requires
the agreement of all relevant parties and the transfer of rights in accordance
with the established procedures.
E. Analysis of Bad Loan
Settlement with Guarantee of Dependent Rights in Credit Agreement between the
Debtor, the Bank, and the Auction House.
The settlement of
bad loans through the execution of guarantees carried out by HSBC Bank and
Balai Auction Mandiri is a complex process, especially in the context of legal
efforts carried out in execution procedures. In the legal analysis of the
District Court Decision No.380/Pdt.G/2018/PN MDN and the High Court Decision
No.550/Pdt/2019/PT MDN, it was revealed that the auction process for the
execution of dependent rights did not succeed in getting a bidder, making the
auction a failure. However, this does not eliminate HSBC Bank's right to
execute, which has again raised debate related to the legal procedures and
provisions governing the execution process. Although the plaintiff argued that
HSBC's action was unlawful because it was considered to violate the legal
provisions that require fiat execution from the court, Article 6 of the UUHT
has affirmed that the holder of the right of dependency has the authority to
carry out the execution in a parate manner. Therefore, despite the debate
regarding the interpretation of the law, the Medan District Court Decision and
the Medan High Court Decision still maintain the validity of the execution
process carried out by HSBC Bank, considering that the bank has made all
efforts to resolve bad loans with debtors.
Conclusion
Based on the Case Study of Decision No.550/Pdt/2019/PT, the legal relationship between the debtor and the Bank through a deed of agreement for the provision of banking facilities in the form of a loan of 4 billion Rupiah. In such cases, the debtor is often not on time to pay loan obligations and interest. Even though restructuring has been carried out, the debtor is still unable to pay off his debt. Creditors provide warning letters and asset auction notices. In the ruling, the creditor's actions were considered to be in bad faith, giving rise to a discussion about the concept of Fiat Executive. The researcher suggests that banks should have strong policies and procedures for providing loans, conducting proper risk analysis, and managing credit effectively to avoid bad loans. Debtors also need to maintain payment obligations and implement good financial management. The government also needs to update the rules in accordance with the problems in the field to create fair legal certainty for all parties.
Bibliography
Anwar, C. J., Suhendra, I., Purwanda, E., Salim, A.,
Rakhmawati, N. A., & Jie, F. (2023). Investigating the relationship
between monetary policy, macro-prudential policy, and credit ris banking
industry. Heliyon, 9(7).
https://doi.org/10.1016/j.heliyon.2023.e18229
Arafah, A. R., Tjitrawati, A. T., Bais, A. N., & Nurkhalisha, F. H. (2024). FIR agreement Indonesia – Singapore: What are the legal implications? Heliyon, 10(8). https://doi.org/10.1016/j.heliyon.2024.e29708
Badriyah, S. M., Suharto, R., Saraswati, R., & Wafi, M. S. (2021). Implementation of the constitutional court decision regarding the execution of fiduciary guarantees and inclusion of default clauses in Indonesia. International Journal of Criminology and Sociology, 10, 33–38.
Cassimon, D., Prowse, M., & Essers, D. (2011). The pitfalls and potential of debt-for-nature swaps: A US-Indonesian case study. Global Environmental Change, 21(1), 93–102. https://doi.org/10.1016/j.gloenvcha.2010.10.001
Catalán, M., Hoffmaister, A. W., & Harun, C. A. (2020). Bank capital and lending: Evidence of nonlinearity from Indonesia. Journal of Asian Economics, 68. https://doi.org/10.1016/j.asieco.2020.101199
Chandera, Y., Utama, C. A., Husodo, Z. A., & Setia-Atmaja, L. (2018). The co-insurance effect hypothesis and the cost of bank loans: Evidence from Indonesian pyramidal business groups. Global Finance Journal, 37, 100–122. https://doi.org/10.1016/j.gfj.2018.03.003
Dobriev, M. (2021). Constitutional guarantees of property rights. Ukrainian J. Const. L., 25.
Fianto, B. A., Gan, C., Hu, B., & Roudaki, J. (2018). Equity financing and debt-based financing: Evidence from Islamic microfinance institutions in Indonesia. Pacific Basin Finance Journal, 52, 163–172. https://doi.org/10.1016/j.pacfin.2017.09.010
Hardiyanto, B. (2021). Politics of land policies in Indonesia in the era of President Susilo Bambang Yudhoyono. Land Use Policy, 101. https://doi.org/10.1016/j.landusepol.2020.105134
Mazumder, S., & Rao, R. (2023). Social trust and the choice between bank debt and public debt: Evidence from international data. Journal of Multinational Financial Management, 67. https://doi.org/10.1016/j.mulfin.2022.100781
Meckelburg, R., & Wardana, A. (2024). The political economy of land acquisition for development in the public interest: The case of Indonesia. Land Use Policy, 137. https://doi.org/10.1016/j.landusepol.2023.107017
Nainggolan, D. C., Nazar, D. M., Hosnah, A. U., & Febrianty, Y. (2023). Cessie in The Guarantee of Rights of Responsibility Reviewed from The Civil Code. Jurnal Sosial Dan Sains, 3(6), 555–563.
Neilson, J. (2022). Intra-cultural consumption of rural landscapes: An emergent politics of redistribution in Indonesia. Journal of Rural Studies, 96, 89–100. https://doi.org/10.1016/j.jrurstud.2022.10.018
Nys, E., Tarazi, A., & Trinugroho, I. (2014). Political connections, bank deposits, and formal deposit insurance. Journal of Financial Stability, 19, 83–104. https://doi.org/10.1016/j.jfs.2015.01.004
Ramadhania, L. M. (2023). A Dualistic Concept of Personal Guarantee Responsibility and Its Relevancy with Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligation A Dualism Of Personal Guarantee Responsibility In Indonesia Bankruptcy Law. LEGAL BRIEF, 12(1), 22–35.
Septianingsih, K. A., Budiartha, I. N. P., & Dewi, A. A. S. L. (2020). Kekuatan Alat Bukti Akta Otentik Dalam Pembuktian Perkara Perdata. Jurnal Analogi Hukum, 2(3), 336–340.
Sukmaningrum, P. S., Hendratmi, A., Shukor, S. binti A., Putri, M. R., & Gusti, R. P. (2023). Determinants of sharia life insurance productivity in Indonesia. Heliyon, 9(6). https://doi.org/10.1016/j.heliyon.2023.e16605
Viphindrartin, S., Ardhanari, M., Wilantari, R. N., Somaji, R. P., & Arianti, S. (2021). Effects of bank macroeconomic indicators on the stability of the financial system in Indonesia. Effects of Bank Macroeconomic Indicators on the Stability of the Financial System in Indonesia, 8(1), 647–654.
Wibowo, F. M. (2023). Legal Analysis of the Enforcement of Two Mortgage Rights on One Land Certificate as a Credit Collateral Object. Proceedings Series on Social Sciences & Humanities, 14, 342–347.
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Mohamad Ariza Al Ghani, Hanafi
Tanawijaya (2024) |
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First publication right: Advances in Social Humanities Research |
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