Expert for the Constitutional Court Sutan Remy Sjahdeinis and experts for the Government Aria Suyudi and Akhmad Budi Cahyono each giving a statement in the judicial review hearing of the Fiducia Security Law, Monday (13/5) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.
JAKARTA, Public Relations of the Constitutional Court—State’s role in providing protection for fiducia security for both parties can be done through an agreement before a notary or through a notary deed. This was conveyed by Aria Suyudi as expert for the Government in a follow-up judicial review hearing of Law Number 42 of 1999 on Fiducia Security, which took place on Monday (13/5/2019).
"The state’s role goes further in the necessity of a notary deed. This notary deed is very strong because it functions not just to form an agreement, but [the notary] also should read it out and give advice if indeed in case both parties cannot understand the contents. So, that is the role of the state," said the founder of the Center for Legal and Constitutional Studies.
Aria also explained that in the Fiducia Security Law, breach of trust is not discussed at all, except in Article 21. However, in business practice, this implementation is subject to 1238 of the Civil Code, which defines breach of trust as being put in a warrant, or a deed, or an agreement. "So, in practice, notification may either be given or not when agreed beforehand. So, breach of trust is quite brief,” said Aria on case No. 18/PUU-XVII/2019 petitioned by Aprilliani Dewi and Suri Agung Prabowo.
In relation to the parate execution mechanism—the withdrawal of the right to take repayment without a court ruling experienced by the Petitioner, Aria said that in Indonesia there are no specific regulations for it. As for Article 30 of the Fiducia Security Law, it states that the fiduciary giver (debtor) must the fiducia security object in order to carry out fiducia security. However, he explained, the elucidation to the article mentions "may request help from the authorities."
"So there are no further regulations, even though there is Perkapolri (Regulation of the National Chief Police) Number 8 of 2011, it is only a wallflower and withdrawals remain under their respective creditors. The Financial Services Authority (OJK) also arranged for the withdrawal of a guarantee to take place in an orderly manner. However, the problem is the brief regulation that only applies to finance companies. Meanwhile, debtors not only comprise finance companies, but also banks and individuals," he explained.
Execution Guarantee
Another expert for the Government, Akhmad Budi Cahyono, explained that fiduciary agreements are not independent agreements but are dependent on their principal agreements. As an accessoire, fiducia security is first agreed upon in the principal agreement to provide legal certainty for creditor to on repayment of the loan by debtor. Thus, collateral by the debtor is a contravention of creditor’s obligation to provide a loan, so that it can create a fair exchange that is fundamental in agreement law that is reciprocal as the implementation of good faith stated in Article 1338 paragraph (3) of the Civil Code. Without collateral, creditor will find it difficult to get their right in accordance with the agreement while debtor has obtained the right to a loan from creditor. This is certainly contrary to the principle of fair exchange. In order to guarantee a fair exchange in loan agreement, creditor needs collateral for the repayment of debtor\'s liability. The collateral is only effective if the creditor has an ease of execution.
"Therefore, the general characteristic of material collateral based on agreements is the ease of execution in the event of debtor defaulting. This applies to mortgage, fiduciary, and mortgage rights. Execution is needed to ensure the implementation of the debtor\'s repayment as agreed in the principle agreement in the form of a loan agreement. Due to special material collateral including fiduciary gifts from debtor to creditor as voluntary through the agreement, the ease of execution is a form of implementation of the debtor\'s good faith in carrying out his duty," Akhmad explained.
Against the Law
Expert for the Constitutional Court, Sutan Remy Sjahdeini, said that prior to the enactment of the Fiducia Security Law, fiduciary collateral in banking was limited to movable objects. But after the enactment of the Fiducia Security Law, it was extended to immovable, tangible, and intangible objects. This, he added, was welcomed by banks. In relation to the bank as a fiduciary recipient (creditor) who can execute the fiduciary guarantee with its own power, such as executing an incracht ruling of a court, Remy is of the opinion that if an object has been voluntarily submitted by a fiduciary giver, it can also be carried out with its own power of execution without a judge’s ruling. However, in the event of a dispute, the bank cannot take a fiduciary guarantee that has been confirmed by an incracht court ruling.
“So, in relation to the impugned article, this is not contrary. The bank practices are against the law. Not to mention, in this case there has been a court ruling, so I think the bank has acted against the law,” said the banking and fiduciary expert.
In their petition, Petitioners argue that Article 15 paragraphs (1), (2), and (3) of the Fiduciary Law contradict Article 27 paragraph (1), Article 28D paragraph (1), and Article 28H paragraph (4) of the 1945 Constitution. The Petitioners argue that their car, a Toyota Alphard V Model 2.4 A/T 2004, had been seized by PT Astra Sedaya Finance (PT ASF). They had made a Multipurpose Financing Agreement to finance the purchase of the luxury car. In accordance with the agreement, they were required to pay the loan to PT ASF for Rp222,696,000 in 35-month installments starting November 18, 2016. In November 18, 2016 - July 18, 2017 the Petitioners had finished paying the installments. However, on November 10, 2017, PT ASF sent a representative to seize the car on the grounds of default. The Petitioners subsequently filed a letter of complaint regarding the seizure by PT ASF representative. However, it was not responded, until they received more mistreatments.
In response to the mistreatments, the Petitioners took a legal action by filing a civil suit to the South Jakarta District Court on April 24, 2018 in case No. 345/PDT.G/2018/PN.jkt.Sel. The court granted the Petitioners’ claim by stating that PT ASF had committed an illegal act. However, on January 11, 2018, PT ASF once again seized the Petitioners’ car in the presence of the police. The Petitioners considered that PT ASF had taken refuge behind the article reviewed in the a quo case even though the decision of the South Jakarta District Court is higher than the a quo law. Thus, the Petitioners argue that there is no legal juridical reason for PT ASF to seize their car by face, including on the basis of the a quo article. (Sri Pujianti/LA/Yuniar Widiastuti)
Tuesday, May 14, 2019 | 15:51 WIB 184