Reconstruction of the Fiduciary Execution Guarantee Post the Decision of Constitutional Court Number 18/PUU-XVII/2019 Based on the Values of Justice with Dignity

Authors

  • Erwin Marliyana Doctoral Program, Faculty of Law, Sultan Agung Islamic University, Semarang, Indonesia
  • Sri Endah Wahyuningsih Faculty of Law, Sultan Agung Islamic University, Semarang, Indonesia
  • Amin Purnawan Doctoral Program, Faculty of Law, Sultan Agung Islamic University, Semarang, Indonesia
  • Teguh Prasetyo Doctoral Program, Faculty of Law, Sultan Agung Islamic University, Semarang, Indonesia

Keywords:

Execution implementation, Constitutional court decision, Execution reconstruction

Abstract

There is a default from the debtor, which is often determined unilaterally by the creditor. If the debtor is late in paying the instalments, the debt collector will immediately confiscate the vehicle by force. The debt collector does not have the right to execute the object if it is not equipped with a deed or Fiduciary Guarantee Certificate. This case often triggers resistance to actions taken by the fiduciary giver because the fiduciary giver (the debtor) wants to secure the object of the fiduciary guarantee so that creditors do not take it. As a result, it often leads to violence committed by debt collectors. Through the constructivist paradigm, research is directed to produce various reconstructive understandings with the themes of trustworthiness and authenticity. While the approach used is a socio-legal research approach as an effort to understand the law in its context, it is expected to support the reconstruction of social reality by prioritizing the interaction between researchers and what is being studied through sources and informants, as well as paying attention to the context that forms inputs, processes, and research results. The execution of the fiduciary guarantee, which is carried out through the mechanism of Article 29 of the Fiduciary Guarantee Act, does not guarantee proper legal protection for debtors because it is often carried out arbitrarily and degrades human values. The impact of the Constitutional Court Decision Number 18/PUU-XVII/2019 raises pros and cons and has implications for the possibility of widespread testing of other laws and regulations. On the one hand, the debtor will benefit; on the other hand, the creditor or fiduciary recipient will become a new obstacle in doing business. The reconstruction of the execution of fiduciary guarantees based on dignified justice after the decision of the Constitutional Court Number 18/PUU-VXII/2019 was carried out on Article 29 and Article 30 of Law Number 42 of 1999 concerning Fiduciary Guarantees, and in the Fiduciary Guarantee Deed, it is necessary to include a clause indicating that there is an agreement regarding the condition of default and the debtor voluntarily or based on awareness to hand over the object of the fiduciary guarantee to the Creditor (Fiducia Recipient) to be sold on his power or the debtor may also be allowed to find a prospective buyer himself so that a high price is profitable.

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Published

16-11-2022

How to Cite

[1]
E. Marliyana, S. E. Wahyuningsih, A. Purnawan, and T. Prasetyo, “Reconstruction of the Fiduciary Execution Guarantee Post the Decision of Constitutional Court Number 18/PUU-XVII/2019 Based on the Values of Justice with Dignity”, IJRAMT, vol. 3, no. 11, pp. 22–30, Nov. 2022.

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Articles