Kedudukan Jaminan Kebendaan yang Dibebani Hak Tanggungan Atas Nama Pihak Ketiga dalam Proses Kepailitan pada Putusan No 13/Pdt.Sus-Gugatan Lain-Lain/2023/PN Niaga.Jkt.Pst Jo No 1240k/Pdt.Sus-Pailit/2023

Abstract

In carrying out business activities, business actors need funds obtained from borrowing money with banking institutions. The implementation of money lending requires material security, one of which is encumbered by a mortgage given by the debtor. Business actors / debtors, in their limitations, often pledge objects that do not belong to them but to third parties. Problems arise when the debtor is declared bankrupt, so the authority to manage all the assets of the bankrupt debtor is transferred to the curator appointed by the commercial court at the district court. This study aims to determine whether to include collateral objects belonging to third parties in the bankruptcy estate under positive law and analyze the ratio decidendi of the panel of judges in Decision Number 13/Pdt.Sus-GLL/2023/ PN.Niaga.Jkt.Pst Jo No.1240K/Pdt.Sus-Pailit/2023. This research is a normative legal research with a statutory approach and a case approach. Data obtained from secondary data collected by literature study to be analyzed descriptively qualitative. The results showed that when referring to Article 6 and Article 21 of the Mortgage Law and Article 1 number 1 jo Article 21 of the Bankruptcy Law, the position of the security object with ownership in the name of a third party is not included in the bankruptcy property even though a property guarantee has been imposed on the property so that the ratio decidendi of the panel of judges in deciding lawsuit No. 13/Pdt.Sus-GLL/2023/ PN.Niaga.Jkt.Pst was wrong and the ratio decidendi of the judges at the cassation level with decision No.1240. K/Pdt.Sus-Pailit/2023 is correct by stating that collateral assets on behalf of third parties are not the debtor's bankruptcy assets.