The availability of funds is needed to improve the business world. Fulfillment of funds can be obtained in various ways one of them with the guarantee agency. Fiduciary Guarantee is a form of guarantee institution that is normatively regulated in Act Number 42 of 1999 concerning Fiduciary Guarantee. Fiduciary is the transfer of ownership of an object on the basis of trust provided that the object whose ownership rights are transferred remains in the control of the owner of the object.[1] Fiduciary only transfers ownership rights to an object while the object is still in the possession of the owner. Fiduciary Guarantee is a guarantee right on movable objects both tangible and intangible and immovable, especially buildings which cannot be encumbered by the security rights as referred to in Act Number 4 of 1996 concerning Mortgage Rights that remain in the control of the Fiduciary Giver, as collateral for the payment of certain money, which gives priority position to the Fiduciary Recipient to other creditors.[2]

Fiduciary guarantee is a follow-up agreement of a basic agreement not an obligation for the parties to fulfill an achievement.[3] Fiduciary Guarantee is an agreement that is accessory with the main agreement which means that the main agreement is in the form of a loan agreement or other agreement that can be valued with money insofar as the object of the fiduciary agreement is a movable object, both tangible or intangible or immovable, especially buildings that are cannot be encumbered with security rights.[4] The imposition of objects with a Fiduciary Guarantee is made with a notary deed in Indonesian and is a Fiduciary Guarantee deed[5] which must be registered at the Fiduciary Registration Office[6]. Debt whose repayment is guaranteed by fiduciary may be in the form of: a. existing debt; b. debt that will arise in the future that has been agreed in a certain amount; or c. debt at the time of execution can be determined based on the principal agreement that raises the obligation to meet an achievement.[7] To provide legal certainty in fulfilling obligations by the Fiduciary Giver (Debtor), the Fiduciary Recipient (Creditor) is given the power to act with the Fiduciary Guarantee Certificate. The Fiduciary Guarantee Certificate has the same executive power as a court ruling that has obtained permanent legal force[8] marked by the words “FOR THE SAKE OF JUSTICE UNDER THE ALMIGHTY GOD”.[9] With this executive power, if the debtor fails to promise, the Fiduciary Recipient has the right to sell the object which is the object of the Fiduciary Guarantee on his own authority.[10]

The executive power of the Fiduciary Guarantee Certificate became contentious when a judicial review was submitted and it was decided by the Constitutional Court with Decision Number 18 / PUU-XVII / 2019. Decision of the Constitutional Court states:[11]

  1. Article 15 paragraph (2) of Act Number 42 of 1999 concerning Fiduciary Guarantee as long as the phrase “executive power” and the phrase “equals a court decision with permanent legal force” contradicts the 1945 Constitution of the Republic of Indonesia and does not have Legal force is binding as long as it is not interpreted “against fiduciary guarantees that there is no agreement on breach of contract (default) and debtors object to voluntary submission of objects that become fiduciary guarantees, then all legal mechanisms and procedures in the execution of Fiduciary Guarantee Certificates must be carried out and apply the same as the implementation of the execution of court decisions that have permanent legal force “.
  2. Article 15 paragraph (3) of Act Number 42 of 1999 concerning Fiduciary Guarantees as long as the phrase “breach of promise” is contrary to the Constitution of the Republic of the Republic of Indonesia Indonesia in 1945 and does not have binding legal force insofar as it does not mean that “the existence of breach of contract is not determined unilaterally by the creditor but on the basis of an agreement between the creditor and the debtor or on the basis of legal efforts that determine the occurrence of breach of promise”.
  3. Explanation of Article 15 paragraph (2) of Act Number 42 of 1999 concerning Fiduciary Guarantee as long as the phrase “executive power” is contrary to the Basic Law of the State The Republic of Indonesia of 1945 and has no binding legal force insofar as it is not interpreted “against fiduciary guarantees for which there is no agreement on breach of contract and debtors object to voluntary surrender of objects that become fiduciary guarantees, then all legal mechanisms and procedures in the execution of the Fiduciary Guarantee Certificate must be carried out and applies the same as the execution of court decisions that have permanent legal force “

There are several main reasons the Constitutional Court issued the decision, firstly, the Fiduciary Guarantee Certificate which has an “executorial title” and “likens it to a court decision that has permanent legal force” which implies that the fiduciary certificate has the power of execution without requiring a court decision. preceded by a civil lawsuit and the execution of the execution is treated the same as in the case of a court decision that has permanent legal force. From the content of the meaning as implied in the norms of Article 15 paragraph (2) of Law 42/1999 above it can be simply understood that the fiduciary certificate gives very strong rights to the fiduciary recipient, in this case the creditor, because the fiduciary certificate can work at any time when the fiduciary giver, in this case the debtor, has been considered a breach of contract. The argument is because, legally, in the fiduciary agreement the property rights have been transferred to the fiduciary rights (creditor), so that the creditor can at any time take the fiduciary guarantee object from the debtor and then sell to anyone with full authority on the creditor on the grounds of the execution power the certificate has been compared to a court decision that has permanent legal force. The perspective of the meaning seems clear that the aspect of constitutionality contained in the norms of Article 15 paragraph (2) of Act 42/1999 above does not reflect the provision of balanced legal protection between the parties bound in the fiduciary agreement and also the object which becomes the Guarantee Fiduciary, both legal protection in the form of legal certainty and justice. On the one hand, there are exclusive rights granted to creditors and, on the other hand, there has been a negligence of the rights of debtors who should also receive the same legal protection, namely the right to propose / get a chance to defend themselves over the alleged breach of promise (default) and the opportunity to get the sale of fiduciary collateral objects at a reasonable price. In other words, in this case, the assessment regarding the occurrence of “breach of promise” unilaterally and exclusively is determined by the creditor (fiduciary recipient) without giving an opportunity to the deditor (fiduciary giver) to make a rebuttal and or self-defense.[12] On the other hand, the principle of surrender of property rights with respect to fiduciary objects reflects that the actual substance of such agreements clearly shows an imbalance in the bargaining position between the fiduciary rights (debtor) and the recipient of fiduciary rights (creditors) because the fiduciary giver (debtor) is in position as the party in need. In other words, the agreement of the substance of such agreement by the parties actually covertly takes place in a “condition of not completely free in the will,” especially on the debtor (fiduciary giver). In fact, freedom of will in an agreement is one of the fundamental conditions for the validity of an agreement (vide Article 1320 of the Civil Code).[13]

     Second, that the substance of the norms in Article 15 paragraph (3) of Act 42/1999 relates to the existence of an element of “default” debtors who then give fiduciary rights (creditors) to sell objects that are objects of fiduciary collateral on their own authority. The problem is when the “broken promise” is considered to have occurred and who has the right to determine? This is the lack of clarity in the norms of the a quo Law. In other words, the lack of clarity has juridical consequences in the form of legal uncertainty regarding when the fiduciary giver (debtor) actually committed “breach of promise” resulting in the emergence of absolute authority on the fiduciary recipient (creditor) to sell the object which is the object of fiduciary collateral. who are in the power of the debtor. Thus, it has been found that in the substance of the norms of Article 15 paragraph (3) of Law 42/1999, there is also a problem of inheritance constitutionality which cannot be separated with the same problem as the provisions whose substance is regulated in the norms of Article 15 paragraph (2) of Law 42/1999 i.e., legal uncertainty related to the execution procedure and certainty about the time when the fiduciary giver (debtor) is declared “breach of promise” (default), whether since the installment stage is late or is not fulfilled by the debtor or whether the due date of the debtor’s loan has been due must be paid off. Such uncertainty also results in the interpretation that the right to determine the existence of “breach of contract” is in the hands of the creditor (fiduciary recipient). The existence of such legal uncertainty naturally results in the loss of the debtor’s rights to conduct self-defense and the opportunity to obtain the sale of fiduciary objects at a reasonable price. that there is no legal certainty, both with regard to the procedure for carrying out the execution and with regard to the time when the fiduciary giver (debtor) is declared “breach of promise” (default), and the loss of the debtor’s opportunity to obtain the sale of fiduciary object at a reasonable price, in addition to frequent lead to acts of “coercion” and “violence” from people who claim to be the party that has the power to collect debtors’ debt loans, can even give birth to arbitrary acts committed by fiduciary recipients (creditors) as well as demeaning the dignity and debtor. Such matter is clearly evidence of the problem of unconstitutionality in the norms regulated in Article 15 paragraph (2) and paragraph (3) of Law 42/1999. Because, even if a fiduciary certificate has an executorial title that means it can be implemented as a court decision that has permanent legal force, the procedure or procedure for the execution of the fiduciary certificate must follow the procedures for carrying out the execution as intended in Article 196 of the HIR or Article 208 RBg. In other words, the execution must not be carried out solely by the fiduciary recipient but rather must submit an application to the district court. The provisions of Article 196 HIR or Article 208 RBg in full are:

“If the defeated party is unwilling or negligent to fulfill the contents of the decision peacefully, then the winning party submits a request, both verbally, or by letter, to the chairman, the district court mentioned in the first paragraph of article 195, to carry out the decision. order to summon the defeated party and warn, so that he fulfills the decision within the time determined by the chairman, which is for eight days “.

After the Decision of the Constitutional Court this has an effect on the process of executing fiduciary guarantees namely the execution process becomes longer and convoluted, costs increase, lack of support in a conducive business climate, reduced potential for Non-Tax State Revenues (PNBP) and others. [14]

Although the Constitutional Court applies a conditional unconstitutional ruling on these two verses, the Constitutional Court does not ignore the fiduciary characteristics that give material rights to fiduciary holders or recipients (creditors), so that fiduciary holders or creditors can carry out their own execution of goods that formally are his own condition:[15]

  1. There is an agreement between the creditor and the debtor regarding the debtor’s default; or
  2. There is a legal remedy (a court ruling or arbitration) which states that the Debtor is in default

If the fiduciary right (debtor) does not recognize the existence of “breach of promise” (default) and objections to voluntarily surrendering the object which is the object of the fiduciary agreement, then the recipient of the fiduciary right (creditor) may not carry out his own execution but must submit a request for execution to the District Court.[16]

If in the Fiduciary Guarantee Certificate there is no agreement regarding the default of the Debtor, the legal remedy of the Creditor is to make a claim based on the default. If the losses suffered by creditors at most amount Rp. 500,000,000.00 (five hundred million rupiah), then use simple lawsuit mechanism as regulated by Supreme Court Regulation No. 2 of 2015 jo. Supreme Court Regulation Number 4 of 2019 concerning Simple Lawsuit. The characteristics of a simple lawsuit include, interrogated and decided by a single judge, the examination period of 25 (twenty five) days from the day the first trial, the legal remedy for the decision was to file an objection to inspected by the assembly. An objection verdict cannot be submitted with an effort the law of appeal, cassation and judicial review (PK). By filing a simple lawsuit the judicial process will quickly differ from an ordinary lawsuit which takes months.

 

Conclusion:

Post Constitutional Court Decision No. 18 / PUU-XVII / 2019, the fiduciary agreement must regulate the breach of contract agreed by both parties, if the debtor refuses to voluntarily surrender the fiduciary object, the execution of the execution shall be the same as the execution of the court decision which has permanent legal force.

 

[1] Article 1 number 1 Act Number 42 of 1999 concerning Ficudiary Guarantee.

[2] Article 1 number 2 Ibid.

[3] Article 4 Ibid.

[4] Decision of the Constitutional Court Number 18/PUU-XVII/2019, page. 114-115.

[5] Article 5 paragraph (1) Ibid.

[6] Article 12 Ibid.

[7] Article 7 Ibid.

[8] Article 15 paragraph (2) Ibid.

[9] Article 15 paragraph (1) Ibid.

[10] Article 15 paragraph (3) Ibid.

[11] Decision of the Constitutional Court Number 18/PUU-XVII/2019, page. 125.

[12] Decision of the Constitutional Court Number 18/PUU-XVII/2019, page. 117-118.

[13] Decision of the Constitutional Court Number 18/PUU-XVII/2019, page. 118.

[14] A. Yudha Hernoko, “Quo Vadis Perlindungan Hukum Bagi Kreditor Pemegang Jaminan Fidusia
Pasca Putusan Mahkamah Konstitusi No. 18/PUU-XVII/2019: Problematikan Aturan atau
Penerapan?”, in Fiduciary Guarantee Post Constitutional Court Decision, Seminar Presentation Material, Faculty of Law Airlangga University, Surabaya, 18 Februari 2020, page. 23.

[15] Y. Sogar Simamora, “Prinsip Eksekutabilitas Atas Jaminan Fidusia Pasca Putusan MK”, in Fiduciary Guarantee Post Constitutional Court Decision, Seminar Presentation Material, Faculty of Law Airlangga University, Surabaya, 18 Februari 2020, page. 3

[16] Contitutional Court Decision Number 18/PUU-XVII/2019, page. 121-122.

 

*) This article is a GRF & Co Copyright that is not strictly prohibited from duplicating or obtaining without consent.