p–ISSN: 2723 - 6609 e-ISSN: 2745-5254

Vol. 5, No. 4 April 2024 http://jist.publikasiindonesia.id/

Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 4, April 2024 1454

Fiduciary in Civil Law and Bankruptcy Law Perspective

Herry Polontoh

, Frans Reum

As a developing country, Indonesia is committed to improving its country's

condition and moving in a better direction. The government actively strives to advance

various economic, social, and cultural sectors, with a concrete example being national

development. The rapid national development in Indonesia requires massive investment.

One of the crucial funding sources is financial institutions, including banks, which have

an essential role in collecting funds from the public and flowing them back to support

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between debtors and creditors. The debtor provides a fiduciary guarantee to the creditor

as collateral for the payment of his debt. Fiduciary guarantees give a fiduciary a privileged

position compared to other creditors. Fiduciary guarantees must be supported by a

certificate that a notary will notarise for a valid agreement. The certificate provides for

transferring ownership rights of objects based on trust between creditors and debtors. In

addition, fiduciary certificates provide executory rights, allowing fiduciary recipients to

confiscate objects without a court decision if the debtor violates the agreement (Kanwil

Babel, 2022).

The application of fiduciary guarantees has become common in lending and

borrowing transactions because the process is simple, easy, and fast. The current fiduciary

bankruptcy and the Fiduciary Law in force today lack legal protection for creditors

holding fiduciary guarantees in the settlement of bankruptcy assets.

Previous research (Nugraha, 2019) examined the legal principles of fiduciary

guarantees from the perspective of Law Number 42 of 1999 concerning fiduciary

guarantees. The results of the study showed that Law Number 42 of 1999 concerning

Fiduciary Guarantees, the process of occurrence of fiduciary guarantees by passing

property rights from the owner (debtor) based on the principal agreement (receivable debt

agreement) to creditors, but only the rights were handed over. Still, the goods remain in

the debtor's possession, or in other words, the ownership rights to the collateral object are

transferred to the Creditor/Fiduciary while the collateral is still physically under the

Another study (Susilowati & Suharto, 2016) examined the legal consequences for

separatist creditors holding fiduciary security rights in the bankruptcy of limited liability

companies; the results of the study showed that the legal implications for separatist

creditors in the bankruptcy of limited liability companies are the waiting period to execute

the object of guarantee held by separatist creditors. The rights and obligations of separatist

creditors are that they are obliged to wait for a period of stay to execute the collateral

object, in addition to which separatist creditors are obliged to report the results of the

auction of the collateral object to the curator. The right received by separatist creditors is

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protection as stipulated in Law No. 37 of 2004 concerning Bankruptcy and PKPU.

The novelty of this research is the object of his study on fiduciary yaki from the

perspective of civil law and bankruptcy law, which has never been studied before. This

research can contribute to developing civil law theory and bankruptcy law, particularly in

broadening the understanding of the concept and implementation of fiduciaries. The study

results can be the basis for legal researchers and academics to conduct further research

and develop more complex fiduciary theories. This study aims to identify and analyze the

regulation and practice of fiduciaries from the perspective of civil law and bankruptcy

law.

This study used normative research methods. A normative research method is used

that has been collected is then analyzed in three stages, namely data reduction, data

presentation, and conclusions.

In business, business capital is fundamental for business actors to run their business

operations. Although, ideally, business actors have enough capital to operate a business,

this is not always the case. Therefore, they often have to find additional sources of funding

through business capital lending activities as a solution to run their business operations.

Business actors get additional capital by being willing to pay back, along with interest or

other benefits, to lenders within a certain period. The business capital lending and

with the object of the agreement being money (Bandem, Wisadnya, & Mordan, 2020).

Regarding receivable debt agreements, rights and obligations involving both parties are

reflected. In essence, the debtor's right is to get additional capital provided by the creditor;

on the other hand, the creditor has the right to receive commission or interest from the

agreement. This commission or interest is in return for the use of the capital provided to

the debtor and is usually stipulated in the terms of the agreement. In addition to rights,

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agreement. Meanwhile, the debtor must return the loan amount per what has been agreed

upon within the predetermined time limit.

Receivables payable activities are carried out by individuals with weak economies

and those whose economies are relatively well-off. Debt depends on the debtor's integrity

or personality, which creates confidence in the creditor that the debtor will fulfill the

payment obligation well. However, despite the good intentions of the debtor, it does not

guarantee that the loan will be fully repaid when due. This condition encourages the need

for additional agreements in accounts receivable transactions. The additional agreement

aims to provide a sense of security for creditors and enable debtors to carry out payment

obligations properly; these agreements guarantee the return of debts that have been given

fails to fulfill the debt payment obligation at the time stipulated in the agreement.

2. Ensure that the debtor remains involved in transactions to fund his business so that the

risk of leaving his business or project that could harm himself or his company can be

prevented or minimized.

3. Encourage debtors to comply with their promises, especially in terms of repayment by

agreed terms, so that debtors and third parties who provide guarantees do not suffer

losses on the pledged wealth.

Based on this function, guarantees are fundamental in building trust among business

people and can improve compliance and stability of relationships between creditors and

debtors. One form of material guarantee is a fiduciary guarantee; fiduciary comes from

debtor cannot fulfill his obligations at any time (default). In that case, the creditor has the

right to seek compensation from the debtor by executing fiduciary guarantees. Objects

used as objects of fiduciary guarantee can be tangible or intangible movable objects and

immovable objects that cannot be burdened with liability. The object of the fiduciary

guarantee must be clearly described in the deed, including the identification of the object

and an explanation of the proof of ownership. For objects that are in inventory and tend

to change or remain, their type, brand, and quality must be explained in detail (Silitonga,

2020).

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30, 1999, have the purpose of serving as a solid legal basis for binding movable objects,

both tangible and intangible, as well as immovable objects that cannot be encumbered

with the right of dependent, which are used as collateral for the repayment of certain

debts. This law has a broad scope in terms of guaranteed objects and transactions to be

guaranteed, aiming to meet the needs of the growing and complex business world. The

existence of these regulations has several vital points in the arrangement of fiduciary

guarantees comprehensively, such as:

1. The position of precedence for the fiduciary beneficiary creditor, which indicates that

in the case of debt repayment, the fiduciary beneficiary creditor has priority over the

pledged object

default by the debtor, the fiduciary beneficiary creditor can directly execute the

collateral without going through judicial proceedings.

5. The imposition of a fiduciary guarantee cannot be recharged, indicating that the

fiduciary guarantee can only be given once and cannot be used as collateral for another

debt without prior release.

6. The fiduciary guarantee follows its object in the hands of anyone, indicating that

ownership of the pledged thing may change hands. However, the fiduciary guarantee

will still apply to the object.

Such guarantees provide a solid legal basis for protecting creditors and debtors and

ensure legal certainty in fiduciary guarantee transactions. Meanwhile, fluctuations are

can occur because the deal is not carried out on time, followed by the proper standards,

or even implemented at all. Generally, a person can be considered in default if they do

not fulfill the agreed obligation if the obligation implemented is not perfect if the

obligation is carried out late, or if they perform actions prohibited by the agreement

(Sinaga & Darwis, 2020). Bankruptcy is a condition in which a company or individual

cannot pay its debts, and the company's activities must be stopped for that reason. This

condition occurs due to financial incapacity caused by financial stress or business

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When there is a conflict between debtors and creditors, fiduciary guarantees

become crucial for both parties. The importance of fiduciary guarantees is outlined in

civil law and bankruptcy law. According to civil law, article 1131 of the Civil Code states

that all debtor assets, both movable and fixed objects, existing and new ones that will

exist in the future, become collateral for all debt engagements. This means that the

provisions of the article are the basis for the provision of guarantees by a debtor to

creditors by using all his wealth. Furthermore, article 1132 of the Civil Code affirms that

property is a standard guarantee for all creditors who have bills against debtors. Revenue

from the sale of these objects is divided proportionally, according to the size of each

creditor's receivables, unless there is a valid reason to give priority to several creditors.

proceedings. These creditors have precedence and can be separated from other creditors.

As mentioned by Munir Fuady, this concept refers to separatist creditors who have

collateral debts on property, such as holders of liens, mortgages, liens, fiduciaries, and

the like (Royke, 2014). These separatist creditors have a preferred position in the

regulation of bail law and bankruptcy law,

Furthermore, Article 56 (1) of the bankruptcy law states that the right of execution

of creditors mentioned in Article 55, together with the right of third parties to claim assets

that are in the control of the bankrupt debtor or receiver, will be suspended for a maximum

of 90 (ninety) days from the date of the court decision declaring the debtor bankrupt. The

fiduciary guarantor can execute his rights after the court pronounces a judgment declaring

fiduciary beneficiary will make to the lender. The material guarantee ensures that the

debtor's debt will be repaid if the debtor fails to fulfill its obligations. In the existence of

this guarantee, the creditor is protected because the loan is given to the debtor as

collateral. In addition, fiduciary guarantees give creditors the right and power to obtain

returns from collateral if the debtor cannot fulfill its obligations, i.e., fails to pay off its

debt as agreed. It also ensures that the debtor remains involved in the transaction to

finance his business, thus preventing the possibility of leaving his business or project

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In general, in the law of security whose object is movable property, the debtor

cannot transfer, mortgage, or lease to another party the object that is the object of fiduciary

guarantee unless the object is an inventory object. However, in the context of fiduciary

guarantees, the transfer of such objects may be permissible, provided there must be notice

to or consent from the creditor. This is not allowed if the debtor transfers the object of the

fiduciary guarantee without being known or without the creditor's consent (Hamka,

2023).

Suppose the creditor transfers the object of the fiduciary guarantee without the

written consent of the fiduciary recipient. In that case, it will violate the legal provisions

stipulated in Law No. 42 of 1999 concerning Fiduciary Guarantee. Article 23, paragraph

to imprisonment for a maximum of 2 years and a maximum fine of Rp.50,000,000,-.

A legal provision provides criminal sanctions against fiduciaries who violate the

rules regarding the transfer of fiduciary guarantee objects without the written consent of

the fiduciary recipient. This aims to maintain integrity and trust in the relationship

between fiduciaries and recipients and maintain legal certainty in fiduciary guarantee

transactions. Meanwhile, from a civil law perspective, the debtor is legally liable if it

transfers or leases the object of the fiduciary guarantee to another party without the

written consent of the fiduciary beneficiary. Based on the debtor's actions, this can be

considered a violation of the previously agreed agreement. According to Article 1243 of

the Civil Code, debtors must reimburse costs, losses, and interest arising from non-

contents of the agreement. Then, according to Article 1267 of the Civil Code, the party

that suffers a loss has the right to choose between two actions. First, they can force the

other party to comply with the agreement made if it is still possible. Second, they can also

file a claim for cancellation of the agreement while demanding reimbursement of costs,

losses, and interest that may arise due to the breach of the agreement.

The study results concluded that the provision of fiduciaries from the perspective

of civil law and bankruptcy law provides a clear legal basis for fulfilling agreements and

protecting the rights of parties involved in transactions. It can then increase trust among

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debtors to expand their business by gaining access to additional financing. As a result, it

can support business sector growth by facilitating investment, project development, and

business expansion, as well as the broad impact of increasing credit and encouraging

overall business sector growth.

Fiduciary, in the perspective of civil law and bankruptcy law, is a form of guarantee

provided by a fiduciary to another party in the context of a guarantee transaction. A

fiduciary is generally included in a fiduciary guarantee that serves as a guarantee received

against a fiduciary who transfers or leases the object of a fiduciary guarantee to another

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