COMPARISON OF THE USE PRINCIPLES OF BUSINESS CONTINUITY IN BANKRUPTCY LAW AND THE JUDGE'S CONSIDERATION DECIDES THE BANKRUPTCY CASE BETWEEN INDONESIA AND WITH UNITED STATES

Abstract

This study aims to compare the use of the principles of business continuity in bankruptcy law and judge's considerations in deciding bankruptcy cases between Indonesia and countries that use the common law system, especially in the United States.This research method is normative juridical using secondary data obtained from literature studies and supported by analysis of solutions through conceptual approaches, comparisons, and case studies of bankruptcy decisions at the first-level commercial court in Central Jakarta.The results of this study indicate that the United States has applied the principles of business continuity to companies that are healthy with the insolvency test, while Indonesia has not, so it is necessary to use it as the judge's main consideration. Based on data, the panel of judges used the principles of business continuity at the Central Jakarta Commercial Court in deciding bankruptcy cases as the main consideration for only 1.9% of the 416 total decisions from 2015 to 2022. There are several articles in Law 37/2004 that do not reflect the principles of continuity of business, especially the articles that are often used by judges to decide on bankruptcy cases, namely article 1 paragraph (1) regarding "the definition of bankruptcy" and article 2 paragraph (1) concerning "the terms of bankruptcy" including the article related to article 8 paragraph (4).Recommended that lawmakers carry out a reconstruction of the articles that are often used by judges in deciding bankruptcy cases.