Pertanggungjawaban Hukum Direktur sebagai Penjamin Pribadi (Borgtocht) dalam Perjanjian Kredit Perbankan (Studi Putusan Nomor 104 Pk/Pdt/2022)

Abstract

Banking Credit is an activity between the creditor and the debtor based on a credit agreement that is binding on the parties, there are several credit risks in the form of creditor losses for providing credit facilities to debtors. Personal guarantee (borgtoucht) is an effort to ensure legal protection of the creditor's rights in the event of a debtor's default in fulfilling debt obligations through transfer. Provisions regarding personal guarantees are in Articles 1820-1850 of the Civil Code. The principle of trust in prospective debtors is important for banks, according to Article 12B of Law No.10/1998 jo. Law No.7/1992 on Banking amended by Law No.4/2023 (P2SK Law). This study aims to determine the legal position between directors and personal guarantors based on the banking credit agreement, then the legal consequences of the personal guarantor's actions in the credit agreement on the rights and obligations of PT Bank Central Asia Tbk, as well as the legal liability of the personal guarantor with the transfer of the debtor's responsibility based on court decision No.104 PK / Pdt / 2022. This research is a type of normative legal research with literature study techniques and document study collection tools. The approach used is a statutory approach and a case approach that uses secondary data. The data analysis uses qualitative analysis with deductive reasoning. The results of this study found that the position as directors and personal guarantors are different or separate, the directors act based on the position of representing the interests of the company inside; outside the court, the personal guarantor acts as a third party binding himself to replace the fulfillment of the interests of the debtor. Then, there are legal consequences of the guarantor's actions in the form of facts - the facts in the examination at trial have been appropriate as the basis for consideration of the decision. As well as, there is an effort to hold the guarantor accountable for bank loans through a court decision with Inkracht status, based on legal considerations that are well-founded and full.