Dampak dan Akibat Hukum Putusan Mahkamah Konstitusi No 18/Puu-Xvii/2019 Terhadap Kekuatan Eksekutorial Sertifikat Jaminan Fidusia

RABAWATI, Dwityas Witarti and ARMAN, Yohanes (2024) Dampak dan Akibat Hukum Putusan Mahkamah Konstitusi No 18/Puu-Xvii/2019 Terhadap Kekuatan Eksekutorial Sertifikat Jaminan Fidusia. Prestisius Hukum Brilliance, 6 (3). pp. 1-17.

Text DAMPAK DAN AKIBAT HUKUM PUTUSAN MAHKAMAH KONSTITUSI NO 18PUU-XVII2019 TERHADAP KEKUATAN EKSEKUTORIAL SERTIFIKAT JAMINAN FIDUSIA.pdf Restricted to Repository staff only Download (270kB)

Abstract

Article 15 of Law No. 42 of 1999 concerning Fiduciary Guarantees regulates the executorial power of fiduciary guarantee certificates, therefore fiduciary guarantee certificates have the same executorial power as court decisions that have permanent legal force. As a result, the execution of fiduciary guarantees is not through a civil lawsuit, but rather the fiduciary recipient is authorized by law either through a court or without going through a court (parate execution), in which case the creditor as a fiduciary recipient has the right to exercise executorial title over the Fiduciary Security object using Fiduciary Guarantee certificate if the debtor is proven to be in default or breach of contract. On February 15 2019, Apriliani Dewi and Suri Agung Prabowo filed a material review case with the Constitutional Court number (18/PUU-XVII/2019) with the main request for material review related to the implementation of Article 15 of Law No. 42 of 1999 concerning fiduciary guarantees which regulates the execution of guarantees. fiduciary. In his decision, the constitutional judge granted part of the applicant's claim in case 18/PUU-XVII/2019. Therefore, the author is interested in researching this decision, regarding the impact of executorial power on fiduciary guarantee certificates and the legal implications for the parties after the issuance of this decision. The type of research carried out is normative legal research, namely legal research carried out by examining library materials or secondary data in the form of legislation and books written by legal experts who are very relevant to the material discussed, so that it can answer the problems studied in this research. The research results show that based on the Constitutional Court Decision No. 18/PUU-XVII/2019, conclusions can be drawn regarding the impact on the Executive Power of Fiduciary guarantee certificates, namely: (1). The executive power of the fiduciary guarantee certificate contained in article 15 of the Fiduciary Law has been in effect imperfectly or incompletely since the issuance of this decision. (2). This Constitutional Court decision resulted in the loss of legal certainty for creditors in the debt repayment process and eliminated creditors' interest in providing loans. (3). Fiduciary material binding agreements will be difficult for the parties to fulfill, especially creditors, because the executorial title in article 15 of the Fiduciary Law is imperfect. (4). This Constitutional Court decision eliminates the specificity of Fiduciary itself, namely ease of execution. This decision creates a new norm by including the phrase injury which is the key word in this decision. Legal implications for the parties providing and receiving Fiduciary Guarantee Objects after the issuance of Constitutional Court decision No. 18/PUU-XVII/2019, namely: (1). This Constitutional Court decision can be used as an argument or basis for fiduciary providers in extending the process of executing fiduciary guarantees, especially regarding determining breach of contract. This provides legal benefits for debtors as fiduciaries due to the inclusion of the phrase breach of contract which is a key word in this Constitutional Court decision. (2). Since the issuance of Constitutional Court Decision No. 18/PUU-XVII/2019, creditors as recipients have lost their executory title which they have through a fiduciary agreement and the implementation of the executorial title in Article 15 of the Fiduciary Law will be difficult to implement because there are several conditions made by the constitutional court. (3). The Fiduciary Recipient, in this case the creditor cannot immediately determine the breach of promise against the Fiduciary giver as the debtor in terms of executing the fiduciary guarantee, if this is rejected by the debtor and the debtor objects to handing over the object of the fiduciary guarantee then the fiduciary recipient must execute the Fiduciary guarantee through a breach of contract lawsuit until it becomes legally binding. still. (4.) Since the Constitutional Court's decision was issued, creditors as Fiduciary recipients will lose their preferential rights in the debt repayment process. In conclusion, a breach of promise occurs when the fiduciary recipient or creditor suffers a loss due to the fiduciary giver (debtor) not carrying out his or her performance, and the assessment of breach of promise is of course based on the fiduciary guarantee certificate because the certificate is attached to legal force that binds both parties as executorial force. (article 1338). The decision does not provide legal certainty, especially for fiduciary recipients, because this decision will be detrimental to the fiduciary recipient (creditor) because the value of the object of the fiduciary guarantee is very small compared to the cost of its execution. This decision does not provide justice because it is contrary to the principle of fair exchange and since the issuance of this decision, fiduciary recipients who were initially preferred creditors can become concurrent creditors in the debt repayment process. Keywords: Constitutional Court Decision, Fiduciary Guarantee

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