Akibat Hukum atas Putusan Pailit Bagi Debitor terhadap Kreditor Pemegang Hak Jaminan Fidusia

Abstract

UUJF which determines the guarantee of fiduciary collateral gives specific position for a certain creditor on other creditors. However, UUK (Law on Bankruptcy) states that although a creditor who holds fiduciary collateral treats the object of fiduciary collateral as if there were no bankruptcy in the debtor, there is a regulation which states that there is a stay of the fiduciary collateral in boedel bankruptcy status. Therefore, there are some problems about legal provisions on the implementation of creditor's bankruptcy as the holder of fiduciary collateral on the debtor as the giver of fiduciary collateral, creditor's position as the holder of fiduciary collateral which has been burdened by the fiduciary collateral when the debtor goes bankrupt, and the legal consequence for the creditor as the holder of fiduciary collateral in executing fiduciary collateral given to the debtor who has gone bankrupt. The type of the research was judicial normative by studying legal norms and other legal provisions related to fiduciary collateral institution and other bankruptcy institutions in Indonesia, and the source of data were obtained from by library study. The result of the research shows that the implementation of a creditor's bankruptcy on a debtor by using the system of fiduciary collateral has the same executorial power as the Court's ruling which is binding. The statement of bankruptcy of a debtor is important for a creditor involved in the bankruptcy statement, especially for separate and preferential creditors. In the implementation of bankruptcy, there is weakness about the minimal limit of debt which not stipulated in UUK. The position of a creditor as the holder of fiduciary collateral in the ruling of bankruptcy holds the position of preferential creditor and is free from the rating of bankruptcy; he can execute the collateral as if there were no bankruptcy. It is different from congruent creditor who does not have collateral. In consequence, there will be dispute between them about the debtor's property. The impact a debtor's bankruptcy on the creditor as the holder of fiduciary collateral in executing fiduciary collateral is the implementation of by preferential creditor as the holder of fiduciary collateral which in accordance with Article 55 of UUK and PKPU which state that a creditor who holds fiduciary collateral can execute his rights as if there were no bankruptcy, but in Article 56 of UUK and PKPU there is a stay period of 90 days since the ruling of bankruptcy is issued in order to execute the object of fiduciary collateral which he holds so that there is no legal consistency in the UUK and PKPU No. 37/2004. Therefore, it is recommended that in the UUK the limit of debt should be mentioned to request bankruptcy so that the amount of debt (relatively small) can be used as the basis for requesting bankruptcy and the stay on the execution on fiduciary collateral in Article 56 of UUK and PKPU should be reviewed because there is no consistency in the execution of fiduciary collateral with Article 55 of UUK and PKPU.