Fiduciary Law Research Articles

Execution of Fiduciary Guarantees Post Constitutional Court Decision Number 18/PUU-XVII/2019 According to Legal Justice Theory

Execution of fiduciary guarantees is a right for creditors holding fiduciary guarantees. The condition for a creditor to be able to execute a fiduciary guarantee is that the breach of promise of the debtor providing the fiduciary guarantee is fulfilled. According to Article 19 of Law Number 42 of 1999 concerning Fiduciary Guarantees (Fiduciary Law), creditors can execute objects that become fiduciary collateral if the debtor providing the fiduciary guarantee defaults. However, the creditor's rights above are not in accordance with other regulations because execution cannot simply be carried out. To carry out execution, the creditor must submit an application to the District Court. It should be understood that the birth of this fiduciary guarantee is to streamline the economic system, namely to make it easier for people to obtain financing for the purchase of movable objects without having to place the objects purchased as collateral in a financing institution. The debtor can still use the movable object in the hope that it will be used to improve the debtor's economy. This reality in the field is also confirmed by the decision of the Constitutional Court (MK) Number 18/PUU-XVII/2019 which interprets Article 15 of the Fiduciary Law which essentially states that the execution of fiduciary guarantees must carry out a request for execution in the District Court. The formulation of the problem in this research is 1. What is the law on voluntary execution of fiduciary guarantees in Indonesia? 2. What is the impact of the Constitutional Court (MK) decision Number 18/PUU-XVII/2019 on the protection of creditors holding fiduciary guarantees according to the theory of legal justice? This legal research method is normative legal research using a statutory regulation approach. The result of this research is the implementation of post-judgment fiduciary guarantee execution No.18/PUU-XVII/2019 has not provided legal certainty that provides justice because there are still differences in interpretation regarding fiduciary guarantees.

Execution of Fiduciary Guarantees Post Constitutional Court Decision Number 18/PUU-XVII/2019 According to Legal Justice Theory

Execution of fiduciary guarantees is a right for creditors holding fiduciary guarantees. The condition for a creditor to be able to execute a fiduciary guarantee is that the breach of promise of the debtor providing the fiduciary guarantee is fulfilled. According to Article 19 of Law Number 42 of 1999 concerning Fiduciary Guarantees (Fiduciary Law), creditors can execute objects that become fiduciary collateral if the debtor providing the fiduciary guarantee defaults. However, the creditor's rights above are not in accordance with other regulations because execution cannot simply be carried out. To carry out execution, the creditor must submit an application to the District Court. It should be understood that the birth of this fiduciary guarantee is to streamline the economic system, namely to make it easier for people to obtain financing for the purchase of movable objects without having to place the objects purchased as collateral in a financing institution. The debtor can still use the movable object in the hope that it will be used to improve the debtor's economy. This reality in the field is also confirmed by the decision of the Constitutional Court (MK) Number 18/PUU-XVII/2019 which interprets Article 15 of the Fiduciary Law which essentially states that the execution of fiduciary guarantees must carry out a request for execution in the District Court. The formulation of the problem in this research is 1. What is the law on voluntary execution of fiduciary guarantees in Indonesia? 2. What is the impact of the Constitutional Court (MK) decision Number 18/PUU-XVII/2019 on the protection of creditors holding fiduciary guarantees according to the theory of legal justice? This legal research method is normative legal research using a statutory regulation approach. The result of this research is the implementation of post-judgment fiduciary guarantee executionMK No.18/PUU-XVII/2019 has not provided legal certainty that provides justice because there are still differences in interpretation regarding fiduciary guarantees.

Roles, Responsibilities and Constraints of Financing Institutions in Fiduciary Law in Indonesia

In the context of an increasingly complex modern economy, the role of financial institutions, especially Fiduciary Guarantees, is crucial in providing and protecting funds for people and companies. Fiduciary Guarantees play a crucial role in consumer financing, especially in the purchase of motor vehicles, by providing legal certainty for creditors and increasing trust in transactions. However, the use of Fiduciary Guarantees often faces obstacles related to legal complexity and procedures, as well as consumer protection and dispute resolution. Research on the role and challenges of financial institutions in applying the Fiduciary Guarantee to customers is relevant to improve the effectiveness of the financial system as a whole. A better understanding of Fiduciary Guarantee registration obligations and procedures is needed to ensure financial institutions' compliance with applicable regulations and to enhance customer protection. This research has the potential to provide better insights on how to improve the efficiency and compliance of financial institutions in applying the Fiduciary Guarantee, which in turn will support sustainable economic growth.

Perlindungan Hukum terhadap Kreditur Pasca Putusan Mahkamah Konstitusi Nomor 18/PUU-XVII/2019

After the Constitutional Court decision Number 18/PUU-XVII/2019, the execution of fiduciary collateral created a sense of injustice and lack of legal certainty for creditors as money lenders. This decision eliminates the Creditor's authority to execute fiduciary collateral objects, as previously stated in article 15 paragraph 3 of the fiduciary law. As a result, the Creditor experienced problems in executing the fiduciary guarantee object after the Debtor failed to fulfil its obligations. The purpose of this writing is to find out what the ideal form of legal protection for Creditors is after the Constitutional Court decision Number: 18/PUU-XVII/2019. The research method used in this research is normative juridical, which only focuses on legal materials using a conceptual approach and a statutory approach. The results of this research are Constitutional Court Decision Number: 18/PUU-XVII/2019 which has made the fiduciary law lose its role as the law establishing fiduciary guarantee institutions. Fiduciary guarantee certificate has lost its identity because the executorial power over the object of fiduciary guarantee which is considered to be the same as the district court decision no longer applies if the Debtor does not voluntarily hand over the object which is the object of fiduciary guarantee to the Creditor.

Prefatory Comments on ERISA Fiduciary Law in 2023

Prefatory Comments on ERISA Fiduciary Law in 2023

Tanggung Jawab Debt Collector Dalam Hal Penyitaan Kendaraan Nasabah Kredit Macet

The purpose of this study is to find out how the responsibility of a Debt Collector who is confiscating a bad credit vehicle is due to default from the debtor. The Debt Collector who carries out his duties cannot just arbitrarily withdraw the existing vehicle because it must comply with the applicable laws and regulations. Both creditors and debtors have fair legal protection. The debtor who makes a credit must also have the competence so that the credit is paid smoothly. If an act of default occurs, it can be prosecuted through civil law or if there is embezzlement of the motor vehicle used by the debtor, it can be prosecuted through criminal means. This article uses a normative research method whose approach is based on an approach to the legislation in force in Indonesia. Where in this normative research provides a view of how the Debt Collector should work according to the current law. Between the creditor and the debtor, there must be synchronization in carrying out their obligations so that there are no problems that lead to the withdrawal of the vehicle being used by the debtor. The fiduciary law that becomes the guarantor must be better understood by debtors who will make vehicle loans to better avoid the occurrence of the default act itself. Looking at the existing conditions, it is possible that many people who enter into credit agreements do not understand the importance of a law or law that applies in Indonesia. It is possible that if many people understand the law, the Leasing party no longer needs to use the services of a Debt Collector.

ASPEK HUKUM GADAI (RAHN) DALAM PERSPEKTIF HUKUM ISLAM

Abstract: Background. Fiduciaryis one of the financing products available in financial institutions, where this financing agreement aims to make it easier for customers to obtain loans by fiduciary gold or other valuables that have resale value such as: land certificates or other building documents, Proof of Motor Vehicle Ownership (BPKB), and Employee Decree (SK), as collateral for the proposed loan and proof that he is able to make repayment at the agreed time. For this reason, in this practice the researcher will describe aspects of pawn law from an Islamic legal perspective. Methods. in this research, emphasizing the legal aspect of fiduciary, this research takes the form of library research (library), with data collection techniques through tracing major theories in literature studies related to fiduciary from an Islamic perspective. The analysis technique used is descriptive analysis, this technique begins by describing the data related to the pawn, then sorting it according to research needs, this pattern will be carried out repeatedly, to ensure the data obtained is in accordance with the research focus Results. Aspects of fiduciary law in an Islamic perspective include the basis for enforcement which is in accordance with Islamic principles, the pillars and conditions of fiduciary, control of collateral goods, binding of collateral goods, use of collateral goods, sale of collateral goods, destruction of collateral goods and expiry of collateral goods. In general, these legal aspects are stated in Islamic law in detail.

Violation of Human Right for Collateral Fraud in Sharia Financial Institution Based on Fiduciary Guaranty Law and Rahn Law

Fiduciary law in Indonesia and the Islamic concept prohibit the use of collateral that is not one’s own and without the authorization of the owner, but the reality that occurs at BMT BM is not the case. This research aims to analyze the practice of using objects on behalf of others as collateral for ijarah multijasa financing in sharia financial institutions from the perspective of Fiduciary Guarantee Law and Rahn Law. This research is a field study with a legal approach. The empirical results show that although it has been regulated in the law, the use of objects that are not owned and without the permission of the owner as collateral still occurs. There is a way to circumvent the rules, particularly when it comes to the creditor’s obligation to register fiduciary objects but reluctance to do so. As a result, protecting third parties is not achieved. The findings indicate that, to ensure that the parties’ rights are still protected, the government must create a legislation on fiduciary that will take into account debtors with tiny nominal debts who feel burdened by the costs of registering fiduciary objects, as was the case in BMT BM.

Governing fiduciary relationships or building up a governance model for trust in AI? Review of healthcare as a socio-technical system

ABSTRACT ‘: Fiduciary law aims to mitigate the inherent risk of ‘trust’, which helps restore interpersonal trust. It remains to be answered how trust should be governed in an AI-driven socio-technical system where technical and social factors are involved including interpersonal relationships and AI-human interactions. Taking interpersonal trust as the backdrop of analysis, this article seeks answers to this question focusing on healthcare. It firstly draws a conceptual framework regarding 'trust' and investigates its interplay with AI as well as examines how it is governed under the fiduciary law. Subsequently, it upholds a socio-technical system perspective, examining how to enable and sustain trust in an AI-driven socio-technical system. A governance model is then developed to elicit ‘intrinsic’, ‘dynamic’ and ‘ethical’ values of trust attributed to various elements under a tri-partite framework. It is recognised that findings of the literature as to trust, its trajectory and implications can be implemented within the proposed framework. Furthermore, it brings novelty by re-conceptualising the elements of 'trust' and associated values, marking distinction to its interpersonal roots and fiduciary relationships. It is considered this governance model, by upholding a holistic viewpoint, provides a generalisable framework that can construct, maintain and restore trust in AI-driven socio-technical systems.

Perlindungan Hukum terhadap Hak Kepemilikan Objek Jaminan Fidusia yang telah dialihkan Tanpa sepengetahuan Kreditur

Introduction: The transfer of a fiduciary guarantee must obtain approval from the Fiduciary Giver (Debtor) and the Fiduciary Recipient (Creditor) but in reality there is often a transfer process by the Fiduciary Giver to the buyer who is the third person which is carried out without the knowledge of the Fiduciary recipient (Creditor).Purposes of the Research: The purpose of this paper is to find out and analyze the Legal Protection of Ownership Rights of Fiduciary Guarantee Objects that have been transferred without the knowledge of the creditor. Methods of the Research: The research method used is normative juridical research, the type of research is descriptive analytical. The sources of legal materials used are primary, secondary and tertiary legal materials. The technique of collecting legal materials used in this research is through literature study. The analysis of legal materials is descriptive qualitative.Results of the Research: The results showed that: 1). Legal protection for third parties who have received ownership rights over the object of fiduciary security carried out by the fiduciary giver (debtor) without the knowledge of the fiduciary guarantee recipient (creditor) has never been regulated in the Fiduciary Law. 2). As explained in Pasal 19, Pasal 21 ayat 1, 2, 3, and 4, Pasal 24 and Pasal 25 of the Fiduciary Law that payments for installments on the object of fiduciary security that have been transferred by the fiduciary guarantee provider (debtor) to a third party are made without the knowledge of the fiduciary recipient (creditor) is still part of the debtor's obligation to pay off the installments of the fiduciary guarantee

Influence of Strategic Leadership on Operation Efficiency of County Governments in Kenya: A Case Study of Baringo County

This research aimed to analyze the influence of strategic leadership on the operational efficiency of the County Government of Kenya: a case of Baringo County. The investigation was based on a study by Curteanu and Constantin (2010). This study adopted a descriptive research design. The target population of the study was the 33 members of top management in the County Government of Baringo. The justification for the choice of the county Chief Officers and County Directors is that they are directly in charge of the implementation of the county government strategic plan and operations under their dockets. The researcher took a census of all the thirty-three members of top management (Chief Officers and Directors) by means of self-administered questionnaires. First, there was empirical evidence to prove that resource allocation influenced the operational efficiency of the County Government of Baringo. Secondly, it confirmed that there was empirical evidence to prove that integrity and ethical issues influenced the operational efficiency of the County Government of Baringo. Thirdly, the study established that strategic control influenced the operational efficiency of the County Government of Baringo. Finally, there was empirical evidence to prove that organizational culture influenced the operational efficiency of the County Government of Baringo. The study recommended that the office of the Auditor General should use the results from this investigation to update the management policy of the County Governments as a means of helping the County Governments to achieve more operational efficiency for optimal service delivery and optimized value for money in the County Governments in Kenya. Again, the study recommends that the County Assemblies, in their role of oversight and legislation, should also use the findings from the study to make laws that will enable the County Governments to enhance their performance and governance and be more operationally efficient. Such legislation should encompass resource allocations and internal control principles. Finally, County Chief Officers and County Directors, being senior managers charged with investment portfolios, are subject to fiduciary laws with strict requirements and controls. Therefore, the findings from this study are relevant to inform their undertaking.

DUE TO THE LAW OF PEGADAIAN FIDUCIARY DEBTORS DEFAULT IN INDONESIA

The existence of a guarantee object is that it still is in the hands of the fiduciary giving debtor in fiduciary guarantees often experience problems, including the fiduciary giving does not carry out its obligations to pay its debts resulting in default. therefore, the purpose of this study is to look at the legal consequences of defaulting on fiduciary debtors at Pegadaian companies and the obstacles faced in a study using a normative juridical approach with descriptive research specificationsThe results of the study show that in KREASI credit that has been registered in accordance with the provisions of the Fiduciary Law where if the debtor is in default, persuasive subpoena efforts will be made, the act of withdrawing the goods in the hands of the debtor until carrying out the execution in accordance with the provisions of Article 15 paragraph (1) of the UUF and the Constitutional Court Decision No. 18/PUU-XVII/2019. Whereas those who are not registered according to the provisions of Article 1155 paragraph 1 of the Civil Code Pawn companies can directly sell collateral objects that are in their control. Obstacles faced by PT Pegadaian if the debtor defaults, namely the debtor does not voluntarily hand over the collateral object, the collateral object has been damaged and no longer functions, and the collateral object is intentionally transferred by the debtor to a third party.

Path Dependence, Systemic Will, and the Transformation of Anglo-American Corporate Fiduciary Law

Path Dependence, Systemic Will, and the Transformation of Anglo-American Corporate Fiduciary Law

Execution of fiduciary guarantee in Sharia Banking after the court's decision number 18/PUU-XVII/2019

Execution of a fiduciary guarantee is a transfer of control of an object of collateral based on agreed terms as a return of the loan value. Based on Law Number 42 of 1999, Islamic banks as holders of fiduciary guarantee certificates have the right to execute the actions of debtors who have breached their promises through the implementation of executive titles, auction sales and underhand sales. Constitutional Court Decision No. 18/2019 had a positive impact on various interested parties directly and indirectly. Thus creating a fair legal relationship between the creditor (fiduciary recipient) and the debtor (fiduciary giver). Execution conflicts over fiduciary guarantees arise due to debtors objecting to executions carried out without prior agreement, either in the form of notification or decision from the court. This research is juridical normative with a discussion of the conditions when the executive title cannot be carried out directly unless there is a decision on execution from the court. The results of this study indicate that the Constitutional Court Decision No. 18/2019 provides a new interpretation of several phrases in Article 15 and their explanations in the Fiduciary Law. The fiduciary recipient can execute if there is an agreement with the debtor.

Robo-Advisors: A Comparative Analysis in the Context of Fiduciary Law

Robo-Advisors: A Comparative Analysis in the Context of Fiduciary Law

A Liberal Theory of Fiduciary Law

A Liberal Theory of Fiduciary Law

Estate Planning and Wills Across Borders: Sometimes a Quagmire in the Making

In this article a synoptic evaluation is made in respect of the estate planning and wills of South African nationals working, investing or living in foreign jurisdictions, in the broader context of globalisation and internationalisation. Estate planners and testators may inadvertently leave family members in a financially vulnerable position or diminish family assets due to a non-appreciation of international private law. The importance of international wills, the role of testamentary trusts, and the potential impact and reciprocity of international instruments are considered. The most applicable Hague Conventions and the EU Succession and Matrimonial Property Regulations are discussed in an attempt to give an overview of the current legal position. In discussing the role of international private law, its practical application is illustrated by way of reference to a few jurisdictions popular among South Africans with multi-jurisdictional estates, namely Malta, Portugal, the Netherlands and the United Kingdom. Although there may be more popular emigration jurisdictions amongst South Africans, this contribution focusses on the South African who lives, works and plays in a European context, without necessarily cutting his or her ties with the homeland. Not all attempts to harmonise wills, deceased estates, succession and matrimonial property regimes have been met with the same levels of enthusiasm by the international community. Contributing hereto may be the fact that fiduciary law deals with sensitive and very personal aspects of individuals and is closely linked to the different worldviews of communities. It is argued that not only fiduciary advisers and will drafters, but also attorneys and notaries involved with prenuptial agreements, should be proficient in the workings and implications of the applicable international instruments. Lastly, an argument is made for more pragmatic and commercial style thinking in the arena of fiduciary law.

How fiduciary duty law incentivises investors to manage sustainability risks

The compatibility of Environmental, Social and Governance (ESG) risk management with the investment management requirements under the investors’ fiduciary duties (FD) figures among the key questions in today’s context of a rapid growth of sustainable investment strategies. Despite some legal developments, namely, in Europe, investors still have no clear answer to this question, which leaves them inert in the face of these new, unconventional types of risk. In our research, we explore the recent advancements in the EU and the US legal practice with the objective to establish to what extent the FD actually requires investors to consider ESG risks in their investment management decisions. Through analysis, we define a theoretical decision-making pattern for ESG risk management set by the current FD law as applied to investors and identify: 1) ESG risk materiality and 2) the effectiveness of ESG risk hedging as its fundamental elements. Then, we design a theoretical representation of ESG risk materiality under the FD legal constraints and identify that the current FD law binds investors to assimilate ESG risks to financial risks; thus, their management is required only if they are financially material for investments. We show that this principle equally applies to long-term ESG risks (like climate change); investors are incentivised to manage only those that are sufficiently financially material considering the applied hypothetical discount rate. Also, through the case study of a recent US ERISA ESOP lawsuit, we reveal that risk aversion towards probability to successfully hedge material ESG risks could impede efficient risk management by incentivising investors not to hedge a material ESG risk, i.e. to breach their FD.

The state of state fiduciary laws for broker-dealers: Predicting the impact of state laws on SEC’s Regulation Best Interest enforcement

On June 30, 2020, US broker-dealers became subject to Regulation Best Interest (Regulation BI), a new standard of conduct imposed by the Securities and Exchange Commission (SEC) after a decade of debate and rulemaking. Regulation BI requires a broker-dealer recommending any securities transaction or investment strategy involving securities (including account recommendations) to act in the ‘best interest’ of the retail customer. Intended to address the different standards of care that registered broker-dealers and registered investment advisers owed their retail clients, Regulation BI tops the list of 2021 priorities for both the SEC and the Financial Industry Regulatory Authority (FINRA), the-self regulatory organisation that governs broker-dealers. In the coming year, initial SEC and FINRA enforcement actions regarding Regulation BI will illuminate the types of conduct or practices that regulators believe violate the new rule. As the federal regulators begin to define what Regulation BI does and does not permit, they do so against the backdrop of some state securities regulators who claimed that Regulation BI would not adequately protect investors. In response to Regulation BI, several states proposed or enacted their own different standards of conduct for broker-dealers. This paper describes the current and proposed fiduciary duties imposed on broker-dealers under state laws, the states’ ongoing assessment of Regulation BI and the resulting pressure that may be brought to bear on the SEC and FINRA as they begin to enforce Regulation BI.

Galambos v Perez, its Critics, and the Equity-Certainty Paradox in Fiduciary Law

This paper examines the merits of the current approach to identifying ad hoc fiduciary duties in Canada, which was exposited by the Supreme Court of Canada in its 2009 Galambos v Perez decision. The indicia of fiduciary relationships expressed in Galambos, I argue, are sufficiently comprehensive and certain to overcome popular academic criticisms of the indicia-based ad hoc approach. Specifically, I will challenge the arguments of the contractarian scholar Anthony Duggan and the equity-focused scholar Leonard Rotman -- both of which argue, albeit from different ends of the academic spectrum, that ad hoc fiduciary duties should not be identified using indicia.