Abstract
The deed of Power of Attorney to charge Mortgage Right or known as Surat Kuasa Membebankan Hak Tanggungan (referred to as SKMHT) based on the Article 15 paragraph (3) and (4) of the Mortgage Law has a period of time, if the term is expired, the deed will be null and void by law. Then a new SKHMT is issued to replace the old Deed. The provisions regarding validity period of SKMHT harm creditors, thus a legal protection is needed. Therefore, this study further analyzed the ratio legis of void and null status, the formulation of principle of legal protection for creditors and the urgency to develop a new concept of legal protections for creditors due to the SKMHT is being void and null. Keywords : SKMHT, void and null, creditors. DOI: 10.7176/JLPG/101-11 Publication date: September 30 th 2020
Highlights
The issuance of a land guarantee institution, namely the mortgage rights, has been mandated in the Article 51 of the Act Number 5 of 1960 concerning Agrarian Principles (UUPA).1 The Act Number 4 of 1996 concerning the Mortgage Rights Law is to replace the provisions regarding credietverband and mortgages, as emphasized in article 29 that by the enactment of this law, the provisions regarding Credietverband as stated in staatsblad 1909-584 jo.staatsblad 1909-586 and staatsblad 1909-584 as amended by staatsblad 1937190 jo.Staatsblad 1937-191 and the provisions regarding Hypothec as stated in book II of the Indonesian Civil Code as long as it concerns the differentiation of Mortgage Rights on the right to land and land related objects are declared invalid
The Surat Kuasa Membebankan Hak Tanggungan (SKMHT) is used when a time conformity determined by the Bank / Creditors occur in the future to represent the guarantor to impose mortgage rights by signing the APHT.5
In regards to the reformulation of the legal protection principle of creditors regarding the nullification of SKMHT, the mechanism for granting mortgage rights in SKMHT is the key of transferring process to the third parties, because it includes certain credit guarantees. It is regulated in Article 10 paragraph (2) of the UUHT which states: "Imposing mortgage rights is preceded by a promise to provide security rights as certain repayment guarantees, which are contained in and are inseparable parts of the debt agreement or other agreements that cause the debt
Summary
The issuance of a land guarantee institution, namely the mortgage rights, has been mandated in the Article 51 of the Act Number 5 of 1960 concerning Agrarian Principles (UUPA). The Act Number 4 of 1996 concerning the Mortgage Rights Law (hereinafter referred to as UUHT) is to replace the provisions regarding credietverband and mortgages, as emphasized in article 29 that by the enactment of this law, the provisions regarding Credietverband as stated in staatsblad 1909-584 jo.staatsblad 1909-586 and staatsblad 1909-584 as amended by staatsblad 1937190 jo.Staatsblad 1937-191 and the provisions regarding Hypothec as stated in book II of the Indonesian Civil Code as long as it concerns the differentiation of Mortgage Rights on the right to land and land related objects are declared invalid. Based on Article 1 Number 1 of the Mortgage Rights Law (UUHT), concerning Basic Agrarian Principles, with or without the land related objects, for repayment of certain debt, which prioritize certain creditor to other creditors.. Especially credit given to economically weak groups in the framework of government programs, can be exempted from the SKMHT time limit as stipulated in Article 15 paragraph (5) of the UUHT. The explanation in Article 15 paragraph (5) UUHT states: In the framework of development implementation and regarding the interests of the economically weak www.iiste.org groups, for the provision of certain loans stipulated by the Government, such as program loans, small loans, housing loans, and other similar loans, the time limit of the power of attorney to impose the mortgage rights as referred to in paragraph (3) and paragraph (4) does not apply. To determine the validity of the power of attorney to impose mortgage rights for certain types of credit is carried out by the competent Minister in the land affairs after doing consultation and coordination with the Minister of Finance, the Governor of Bank Indonesia, and other related officials
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