| dc.description.abstract | The Practice of The Fiduciary Institution In Terms Of Credit Security For The Bank And Its Development. Fiducia or Fiduciaire Eigendoms Overdracht (Fiduciary Transfer of Ownership) refers to the institution of providing security on movable goods in which the security is not handed over to the creditor (bank) but remains in the debtor's hand. Its legal basis was the Decision of the High Court: Bierbrouwerij Arrest, dated 25 January 1929 N.J. 1929, 616 and the Decision of the Supreme Court : Bataafsche Petroleum Maatschappij Arrest, dated 18 Agustus 1932 (Indische Tijdschrift van het Recht Deel Number 136). The purpose of the fiduciary system of security provision is to safeguard the credit offered by the bank against possible circumstances in which the debtor is unable to fulfil his obligation in accordance with the credit agreement approved by both sides. In fiducia, the security is under the control of the debtor; what is fiducially transferred to the creditor is the ownership of the security. This is an interesting case for investigation, considering the possibility of abuse by an untrustworthy debtor. In order to understand the nature of fiducia as a safeguard of a bank credit, it is not enough to rely on the existing treories, but one should observe the banking practices adopted by government banks as well as national private banks.
In banking practices, the fiduciary system is no longer restricted to movable goods but has tended to include the use of immovable goods as security. This tendency has partly developed from a demand arising from the needs of the general public, but it has also been influenced by the enforcement of the Agrarian Act Number 5 of 1960. The system is compatible with the needs of the general public because the procedure is straightforward, flexible, fast, and inexpensive, and it covers both movable and immovable goods. The system is said to be influenced by the Agrarian Act Number 5 of 1960 besause under this Act, the fiduciary system is also applicable to buildings and houses on state-owned land, on land with the right of lease and right of use. According to the regulations in the Agrarian Act, these rights over this property cannot be morgaged. The legal basis of the fiduciary system on immovable goods is Act Number 16 of 1985 concerning Blocks of Storeyed Flats.
A bank's main business is to draw in money from the public and allocate funds on credit for those who are in need of working capital. In doing this business, a bank strongly maintains the principle of "Commanditerings verbod", i.e., the bank is prohibited from bearing the risks that may happen to the customer's business. The bank needs security to avoid the risks.
The existence of fiducia has been triggered by the urgent needs of the general public. In Indonesia, the institution of security provision as regulated in the Civil Law no longer meets the needs of the general public. The fiduciary system of offering credit does not give a sense of security and certainty of the repayment of credit to the bank, but it is widespread in practice. This lack of security in the fiduciary system is caused by the fact that it does not adopt the system of registration so that no third party is aware of the debtor's position over the security. In order to avoid the risk of dealing with untrustworthy debtors, a bank requires, in addition to the credit agreement, an agreement on the transfer of ownership based on trust (fiducia) appended with a list of goods serving as security. | en_US |
