Legal Protection Regarding Debtor Rights with Productive Credit Against Execution of Fiduciary Guarantees by Justice-Based Creditors

Abstract

Fiduciary guarantee is one of the specific material guarantees that develops in practice. Since the promulgation of the provisions of Law No. 42 of 1999 concerning Fiduciary Guarantees, officially the fiduciary obtains certainty regarding the mastery of moving objects in the hands of the debtor. One certainty regulated by Law No. 42 of 1999 concerning Fiduciary Assurance is a matter of execution where creditors can choose the execution model that is considered to be the most beneficial for both parties. One of the rights of the creditor if he considers the debtor to be in breach of promise is to make a direct withdrawal to the debtor of the object of guarantee and if necessary requesting the assistance of the security apparatus is a breakthrough and convenience provided by the provisions of Article 30 of Law No. 42 of 1999 concerning Fiduciary Guarantees. This direct withdrawal will certainly be a problem if the object of collateral is used for productive purposes which results in the debtor not being able to run his business because he has lost the object of guarantee in a fiduciary agreement. This study aims to identify, understand and analyze the ratio legis of fiduciary guarantee execution as stipulated in article 30 of Law No. 42 of 1999 concerning justice-based Fiduciary Guarantees and the form of regulation of protection of the rights of debtors with productive credit towards the execution of fiduciary guarantees according to the provisions of article 30 of Law No. 42 of 1999 Of Justice-based Fiduciary Guarantees. This study is normative research by carrying out several approaches, namely the legislative approach, case approach, historical approach, and comparative approach. The results of this review reveal that the beginning of the purpose of the Act No. 42 of 1999 concerning Fiduciary Guarantees is in the context of fulfilling capital through an object as a guarantee object, but in its development credit is also intended for satisfying needs or non-productive, so that the treatment between productive credit and productive credit is necessary where productive loans should be provided (stay ) or the opportunity to be able to pay off the debt, even though the distribution limit has ended or in other words the creditor does not directly use his right to execute the object of fiduciary collateral directly as stipulated in article 30 of Law No. 42 of 1999 concerning Fiduciary Guarantees without providing the opportunity for productive debtors to repay their debts. Keywords : Fiduciary, Productive Credit, Execution. DOI : 10.7176/JLPG/83-09 Publication date :March 31 st 2019