Kedudukan Hukum Klausula “Penyerahan Dan Pengalihan Jaminan” pada Akta Pemberian Jaminan dan Kuasa pada Bank Swasta di Medan

Abstract

Banks as financial institutions play an important role in channeling funds to the public through the provision of credit facilities, which are generally accompanied by guarantees to ensure debt repayment. In practice, it was found that one private bank in Medan uses a deed called Provision of Guarantee and Power of Attorney (PJDK) specifically in take-over credit schemes to bind guarantee objects in the form of certificated land rights. The PJDK deed contains a surrender and transfer of guarantee clause that grants authority to the bank to obtain the guarantee object if the debtor defaults, without going through the execution mechanism based on the mortgage rights institution. This research uses an empirical juridical method with primary data collection through interviews and secondary data through literature study, as well as an approach to relevant legislation. Conclusions are drawn using deductive reasoning method, from general provisions to specific conclusions. The research results show that the use of PJDK deeds to bind certificated land rights deviates from the principles in Law Number 4 of 1996 concerning Mortgage Rights (UUHT), which states that mortgage rights are the only property guarantee institution for registered land rights. Therefore, binding through PJDK does not fulfill the principles of legal certainty and legal protection as guaranteed in UUHT. Notaries should exercise their authority to provide comprehensive legal counseling to the parties regarding the risks and legal consequences. The main risks that arise include legal uncertainty for debtors and weak executorial power for creditors over guarantee objects that have been bound through PJDK deeds.