Kepastian Hukum Atas Pengajuan Kurator Kepailitan dalam Voluntary Bankcruptcy Petition Pasca Lahirnya Sema No 2 Tahun 2016 ( Studi Putusan Mahkamah Agung No.196k/Pdt.Sus-Pailit/2017)

Abstract

Bankruptcy practice in Indonesia has become increasingly complex, especially after the issuance of Supreme Court Circular Letter No. 2/2016 which aims to address bankruptcy issues. This circular letter adds a formal requirement that requires debtors in voluntary filings to complete the application with creditor approval regarding the proposed name of the curator. However, this regulation creates new problems, as stated in Supreme Court Decision Number 196K/PDT.SUS-PAILIT.2017, where debtors who have fulfilled all the requirements in Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations are still rejected. This research uses normative juridical method with secondary data through library research. This research analyzes legal provisions in related cases as well as other library materials relevant to the objectivity of the research.The conclusion of this study shows that although the issuance of SEMA No. 2/2016 was intended to provide certainty and prevent abuse in the filing of voluntary bankruptcy petitions by debtors, its implementation has created new problems in practice. One of the main problems is the resulting legal uncertainty, especially due to the absence of further regulation explaining the steps to be taken if creditors do not respond to the debtor's request for approval. In addition, there is no clarity on the minimum number of creditor approvals required, leaving room for multiple interpretations.Furthermore, this study found potential conflicts of interest and curatorial independence in certain situations, which should be of particular concern in the insolvency system. Confusion also arises from the provision that requires debtors to obtain the consent of creditors before the list of permanent creditors is approved by the court, which procedurally contradicts the stages in bankruptcy law. This research also confirms that SEMA is not part of the hierarchy of laws and regulations as stipulated in Law No. 12/2011 on the Formation of Laws and Regulations, but only an internal administrative rule that is internally binding on judges under the Supreme Court. As a result of this mistake, many bankruptcy petitions that have materially fulfilled all the requirements in the Bankruptcy Law are rejected simply because they do not meet the provisions in the SEMA.Thus, the existence of SEMA Number 2 Year 2016, instead of providing legal certainty, creates uncertainty and injustice for the parties in the practice of voluntary bankruptcy petition.