Insolvent Debtor Research Articles

On the issue of maintaining a balance of private and public interests in satisfying creditors’ claims in bankruptcy proceedings

The article analyzes the problems of satisfying creditors’ claims in bankruptcy proceedings. In the context of a conflict of interests of creditors caused by insufficient property of an insolvent debtor, the search for an optimal model for satisfying their claims was carried out. Common conflict situations arising between pledgees and authorized bodies have been identified. For example, in cases of satisfaction of claims for mandatory payments secured by the seizure of a taxpayer’s property. The tax authorities, as current creditors, also file claims for payment of income tax, property tax and land tax. The legal positions of the Constitutional Court of the Russian Federation are analyzed. It is concluded that it is necessary to eliminate the imbalance of interests of collateral creditors and authorized bodies, and restoration of the security function of the pledge.

The problem of distinguishing between general and special grounds for challenging transactions of an insolvent debtor

The problem of distinguishing between general and special grounds for challenging transactions of an insolvent debtor

Opening of bankruptcy proceedings at the initiative of the creditor

In cases where a debtor in an obligation becomes unable to pay “on account” any more, the only way left to the creditor or creditors of such debtor to protect their financial interests is to open bankruptcy proceedings against such debtor. However, in practice, not everything is so simple, which makes it necessary to study this issue. The purpose of the article is to reveal relevant issues that arise during the opening of bankruptcy proceedings at the initiative of the creditor, to study the problems that arise in this area and to formulate proposals for improving Ukrainian bankruptcy legislation. The creditor’s appeal to the court with an application to open bankruptcy proceedings against his debtor is one of the manifestations of the right of the initiating creditor to judicial protection. It is emphasized that the possibility of the creditor to apply to the debt repayment mechanisms of his insolvent debtor through bankruptcy procedures is provided only for those creditors who have monetary claims against legal entities. If the debtor of the creditor is a natural person, then such a creditor is limited in the ability to protect his rights through bankruptcy procedures, and can use all the tools offered by the legislation in this area, only in the event that the debtor himself – a natural person shows a desire to initiate proceedings in an insolvency case against himself. It is proposed to provide in the legislation of Ukraine the right of a creditor to initiate bankruptcy proceedings against a debtor who is an individual entrepreneur. The conditions for opening bankruptcy proceedings at the creditor’s request have been studied. The presence of a legal dispute as a reason for refusing to open bankruptcy proceedings was analyzed, and judicial practice in this area was studied. The provisions of the bankruptcy legislation regarding the ability of the initiating creditor to submit a proposal for the nomination of an arbitration manager to perform the powers of a property manager or a restructuring manager before the day of the start of operation of the Unified Judicial Information and Telecommunication System in the application for opening proceedings in the bankruptcy case have been analyzed.

Comparative legal analysis of foreign and domestic norms on challenging transactions of an insolvent debtor

The article presents the results of the study of foreign and domestic legal norms on challenging the transactions of an insolvent debtor. On the basis of comparison of legal norms of England (Anglo-Saxon legal family), Saudi Arabia (religious law) and Russia (Romano-Germanic legal family) there are established common features and differences in approaches to definition of legal norms on contestation of insolvent debtor’s transactions.

Bankruptcy according to the bankruptcy law and postponement of payment perspective of creditor legal protection

The development of the business world is strongly influenced by the business world as one of the economic actors, including the banking business. The business world is also very dependent on the conduciveness of the business climate that supports it. If the business climate conditions are not conducive, it will affect the stability of the business world, and can even cause business actors to suffer losses, which results in the capability and credibility of business actors in carrying out their business activities being disrupted, and can even result in bankruptcy. To maintain the smooth running of their business, business actors must obtain guaranteed protection through legal instruments established by the government. Legal protection given to banks as creditors is needed in maintaining business continuity. This legal protection is very important, considering that banking is an economic joint that supports the most vital national economy. Filing for bankruptcy which requires a minimum of 2 (two) creditors for a bankrupt debtor using the Postponement of Debt Payment Obligation mechanism based on the bankruptcy law and PKPU does not provide a guarantee of sufficient legal protection for creditors.

The Application of General and Criminal Confiscation Laws in Bankruptcy Cases in Indonesia and Australia

There is often an intersection between general confiscation and criminal confiscation, one of which is caused by disharmony in confiscation arrangements between general confiscation and criminal confiscation. This study examines the comparison of the application of general and criminal confiscation law in bankruptcy cases in Indonesia and Australia and finds out whether the method of resolving general and criminal confiscation disputes according to Australian bankruptcy law can be applied in Indonesian bankruptcy law. Applying normative legal research, this study revealed that the resolution of disputes between vesting of property in bankruptcy law and confiscation orders in the law of proceeds of crime prioritizes legal certainty. This is evidenced by the provisions of Articles 6C, 58, 58A of the Bankruptcy Act 1966, which provide a detailed explanation of when and at what times there are exceptions to the application of vesting of property to the property of bankrupt debtors. The practice of applying dispute resolution between the institution of confiscation in bankruptcy law and confiscation for proceeds of crime according to bankruptcy law in Australia has been practiced several times by the Commercial Court in Indonesia.

Assessment of Financial Stability Indicators of Organizations

A reliable assessment of the financial stability of an organization plays an important role in the prosperity, expansion and stability of any organization. It is important to understand that bankruptcy is not always a sign of a failed business or the debtor's insolvency. In some cases, bankruptcy is used as a debt restructuring tool, especially in situations where financial difficulties have arisen due to temporary circumstances. This article examines the indicators that affect the strategic management of an organization, analyzes the methods of preventing bankruptcy of organizations. The author provides recommendations that can help the company cope with financial difficulties and avoid bankruptcy.

KEPASTIAN HUKUM AKTA PEMBERIAN HAK TANGGUNGAN TANPA SEPENGETAHUAN KURATOR ATAS HARTA DEBITOR PAILIT DAN AKIBAT HUKUMNYA


 
 
 
 
 
 
 
 Bankruptcy is a general seizure of all the assets of a bankrupt debtor whose management and settlement is carried out by the curator under the supervision of the Supervising Judge. The debtor by law loses his right to control and take care of his property included in the bankruptcy estate from the date of the decision on the declaration of bankruptcy. The phenomenon that occurs is the transfer of the bankrupt debtor's property to another party after the bankruptcy decision is pronounced by The Commercial Court without the knowledge of the curator by making a deed of granting mortgage rights to the bankrupt debtor's property. The theory used in this writing is the theory of legal consequences according to Soeroso and the theory of legal certainty according to Jan Michiel Otto. The method used in this study with the type of normative research is legal research with secondary data using primary, secondary and tertiary sources of legal materials. The research approach used is the approach of legislation, conceptual, case, and analytical and legal material collection techniques carried out by identifying and inventorying positive legal rules, researching library materials and other sources of legal materials relevant to the legal issues under study. Legal material analysis technique is done by legal interpretation (interpretation) grammatical, historical and systematic.
 From the results obtained that the legal consequences of the deed of granting the mortgage without the knowledge of the curator of the bankrupt debtor's property is the deed of granting the mortgage is null and void, with the decision of the judge whose status has permanent legal force which gives sanctions in the form of cancellation of the deed of granting the mortgage, is a manifestation of the legal consequences. As for the legal certainty of the deed of granting a mortgage without the knowledge of the curator of the bankrupt debtor's property does not have legal certainty, with the judge's decision whose status has permanent legal force which states that the deed of granting the mortgage is null and void, the legal certainty of the deed of granting the mortgage has been realized.
 
 
 
 
 
 
 

KAPASITAS PENJAMIN PERORANGAN DALAM SENGKETA KEPAILITAN

The guarantor agreement/individual guarantor or personal guarantor often requires the guarantor to relinquish his rights as a personal guarantor so that the consequences of the personal guarantee result in bankruptcy. Various decisions on bankruptcy petitions state that the personal guarantor can be made bankrupt, so that the guarantor as referred to in article 1 paragraph 1 of the Bankruptcy Law must release all his assets into general confiscation to pay off creditor payments. The main problem that will be studied is the position of the guarantor, in this case the personal guarantee, which is used as a bankruptcy debtor. The purpose of writing this journal is to analyze the capacity of personal guarantees made by bankrupt debtors the same as the main debtor because at the time of making the guarantee deed the guarantor was willing to voluntarily relinquish all his privileges without waiting for the main debtor to default and his assets to be sold. This journal is normative juridical research, with a statutory approach and a case approach. In this journal, it was found that making a guarantee deed means that the position of a guarantor who can be made bankrupt is a weak position in an agreement, so the role of the notary must be to be able to provide legal counseling before the personal guarantor signs the guarantee deed. The result of this study is that Personal Guarantee as a guarantor of bankruptcy has an equivalent status with the main debtor because in making the deed of guarantee, the guarantor has agreed to release his privileges without waiting for the default of the main debtor. If the main debtor's debt is not met, the creditor can file bankruptcy against the guarantor (Personal Guarantee or Corporate Guarantee) in accordance with the bankruptcy law. In the agreement, it is important for all parties (creditor, notary and debtor) to understand the risks that may arise when the guarantor signs the deed of guarantee

Legal Protection of Creditors Constitutional Rights as Citizens Due to Debtor Insolvency

Creditor legal protection against debtor bankruptcy is based on bankruptcy law. Circumstances in which the debtor’s assets are insufficient to fulfill his payment obligations. Meanwhile, the definition of bankruptcy is universal confiscation of all liquidation assets, the release of which is attempted by a curator. based on Law Number 37 of the Republic of Indonesia, 2004, will split suspension of payment obligations. The debtor defaults only if the total amount owed exceeds the value of the asset. Bankruptcy-free maturity requirements are required as a bankruptcy condition so that the law does not state bankruptcy status as a bankruptcy condition, providing legal protection and legal basis. The study found that efforts to obtain legal protection for creditors include providing preventive legal protection aimed at preventing violations against creditors in the event of a bankrupt debtor, from payment obligations. Legal protection includes the principles of law, equality, Paribas, structured debt, debt collection, the universal principle, and the principle of legal justice, especially in Indonesian bankruptcy.
 Keywords: legal protection, creditors, insolvency, bankruptcy

REHABILITASI PEMULIHAN NAMA BAIK DEBITOR PAILIT DI INDONESIA

This research aims to find out the debtor can restore his good name in order to restore his good name so that the debtor can still apply for credit again and the process that can be done to restore the good name of a debtor declared Bankrupt by the Court will lose reputation in the eyes of the public. The research method used is normative juridical, with a statutory approach (statue approach), historical approach (historical approach), and case approach (case approach).Based on the analysis and research results that first, the existing bankruptcy regulations are considered unreliable, namely the Civil Code, and Law No.37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations. Because bankruptcy can end with a peace. This peace is carried out by means of an agreement between the bankrupt debtor and the creditors to pay some of their debts first. However, in reality, not all settlements are acceptable. When reconciliation is not acceptable, insolvency becomes the way to end the bankruptcy. The second way to end a bankruptcy is through rehabilitation. Rehabilitation can be accepted if the creditor has received full payment of the debt. Then bankruptcy can be ended by a judge's decision in a higher court level. The judge's decision at a higher court level can revoke the bankruptcy declaration. In addition to these things, there are also things that can make bankruptcy end, namely the revocation of bankruptcy at the suggestion of the supervisory judge. The supervisory judge can give a recommendation to revoke the bankruptcy declaration decision because he knows the financial condition or assets of the bankrupt debtor.

Debt relief of debtors de lege ferenda and the protection of the creditorʼs property rights

The relevance of the research topic is in the need to develop new ideas on the possible development of insolvency law in the event of an unexpected and unforeseen serious commercial or financial crisis of a structural nature. The purpose of the presented text is to indicate the possible directions of changes in the specific and characteristic insolvency institution of “debt relief”. The text was prepared using mainly a formal-dogmatic research method as the study is a general reflection on debt relief of an insolvent debtor (bankrupt), not connected with any particular legal system. It is a well-known and popular institution in many insolvency legal systems worldwide. However, when it comes to the details of the regulation, there may be even serious differences. The problem of debt relief is considered in the context of the protection of property rights of creditors. The creditorʼs claim is, after all, a component of his property. The study briefly discusses the arguments for the admissibility of debt relief in the context of the creditorʼs property right. An important part of the study deals with the issue of collective (group) debt relief of many debtors at one time. In the event of structural crises or as a result of special disturbances (e.g. wars, natural disasters), individual debt relief procedures may be too heavy a burden for the judicial system, and thus insolvency courts (other organs), due to extraordinary situation may be ineffective. In the course of the study, atten- tion was paid to some kind of redefinition of the insolvency debt relief structure. The practical value of the study is expressed in the possibility of its application in designing legal norms and establishing state policy in counteracting insolvency

JURIDICAL REVIEW OF BANKRUPTCY CONDITIONS AND DELAY OF DEBT REPAYMENT OBLIGATIONS

Bankruptcy results in a general confiscation of all assets of the bankrupt debtor (budel bankrulit). An important phase in the bankruptcy process is the insolvency stage. Based on the explanation of Article 57 paragraph 1 of the Bankruptcy Law and PKPU, what is meant by insolvency is the state of inability to pay, this is in line with the Central Jakarta Commercial Court Decision Number: 44 / PDT. SUS. PAILIT/20 20/PN. TRADE. JKT. PST. That PT. Pazia Retailindo was declared bankrupt. Application for bankruptcy filed by PT. Dana Kaya through its Directors, namely Sri Dewi Endang Mumpuni and Ambar Bawono on October 20, 2020, was represented by the appointed legal representative, namely PARLIN SIHOMBING, S.E., S.IP., S.H. Advocate at the Law Firm BELASSANDRO TORUAN &; PARTNERS. The problem raised in this study is the condition of Insolvency of PT. Pazia Retailindo before the bankruptcy decision , and what underlies the judge's consideration in the bankruptcy decision Number: 44 / Pdt.Sus.Pailit / 20 20 / Pn.Niaga.Jkt.Pst which refers to Law Number 37 of 2004. This research uses a Normative Juridical approach. The result of this study is that the legal considerations used by the panel of judges in deciding the bankruptcy case of PT. Pazia Retailindo complies with Law Number 37 of 2004 concerning Bankruptcy and PKPU, namely the fulfillment of all elements contained in Article 2 Paragraph 1 and Article 8 Paragraph 4 of the Bankruptcy Law and PKPU.

Reformation of Indonesian Insolvency Regulation on Execution of Cross-Border Assets Based on the European Union

The current possibility of hassle-free negotiations and transactions across countries allows international trade to be a significant source of profit for businesses in Indonesia. In the process, businesses are often exposed to risks of insolvency for being unable to repay debts. An insolvent debtor owning assets in other countries shifts the case to a cross-border insolvency case. As there is currently an absence of cross-border insolvency regulation in Indonesia, this paper therefore aims to reform Indonesian insolvency regulation through analyzing and applying learning points from the European Union’s success in managing cross-border insolvency. This paper identifies as legal normative research and is done through prescriptive analysis. The data used is secondary data obtained through a literature review, which includes primary and secondary sources. This paper uses the statute approach and will be analyzed qualitatively. Through the discussion, it is suggested that Indonesia adopt several relevant aspects of the EU regulation. To ease implementation, Indonesia should consider moving towards the reformation as a part of ASEAN. Alternatively, Indonesia can also independently engage in bilateral or multilateral treaties. To add on, Indonesia should advance from the idea of absolute territorialism or absolute universalism and instead seek to implement modified universalism in its cross-border insolvency regulation.
 

PROPORTIONALITIES OF JUDGE'S DECISIONS ON THE POSITION OF CONCURRENT CREDITORS AS AN EFFORT TO ENFORCEMENT OF LEGAL CERTAINTY OF THE PARTIES IN BANKRUPTCY DISPUTES

<em>Bankruptcy which is a condition in which the debtor is unable to make payments on his debts to creditors. In the dispute process, there is a sequence of creditor levels which will affect the settlement of creditor receivables, namely preferential, separatist and concurrent creditors. Concurrent creditors who are at the last level make their position very vulnerable to not getting their receivables repaid. This requires further research in this regard. This study uses a normative legal method which will analyze legal sources and legal literature related to the topics discussed. This research will discuss 1) what is the position of concurrent creditors in bankruptcy disputes and 2) how is the proportionality of the judge's decision on the position of concurrent creditors in bankruptcy disputes as an effort to enforce the legal certainty of the parties? The results of this study indicate that the position of concurrent creditors in bankruptcy disputes is that creditors are the most recent in paying off their receivables. Then the proportionality of the judge's decision on concurrent creditors is given to the supervisory judge as the party who has the authority to distribute the proceeds from the sale of the bankrupt debtor's assets. Concurrent creditors will receive results based on Article 189 Paragraph (3) Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Suspension Obligations.</em>

Entrepreneurial risks of property purchasers at bankruptcy tenders

Bankruptcy tenders perform several functions that are aimed at maximizing profits, transparency of the procedure, protection of the private interests of creditors and the insolvent debtor. Contracts concluded at such auctions have significant business risks due to the high probability of their contesting by interested parties, possible legal defects of property and property rights realized at tenders, limited application of contract law to the requirements for the performance of contractual obligations in kind. Participation in the tenders means taking on entrepreneurial risks, provided that the information is disclosed in good faith by the y of bankruptcy officer. The protection of the tender winner interest is limited to the interests of the creditors of the insolvent debtor.

Secured credit and bankruptcy resolution

AbstractAccepted wisdom holds that secured creditors favor liquidation of a debtor in bankruptcy even where the debtor may be more valuable as a going concern. This is false wisdom, however. Holders of senior claims can be expected to favor liquidation prior to a debtor's bankruptcy because the return on such claims are capped by the amount owed while debtor asset values fluctuate. But bankruptcy is a day of reckoning that can eliminate a creditor's exposure to value fluctuation. For this reason, we expect that modern bankruptcy practice, with the secured creditor often firmly in control, does not unduly encourage liquidation. In fact, we expect any bias to favor reorganization, which can be manipulated for the benefit of any party in control of the bankruptcy process. Our results are consistent with this hypothesis. In a broad study of US corporate bankruptcy cases, we find that secured credit is positively and significantly correlated with the reorganization of insolvent debtors.

Kewenangan Kurator atas Implementasi Business Going Concern Principle dalam Pengurusan Boedel Pailit

Law Number 37 of 2004 on Bankruptcy and Suspension of Debt Payment Obligations was formed to distribute the debtor's bankruptcy debt to creditors proportionally and fairly. A company that has been declared bankrupt but does not yet have insolvent status is not considered to have ended so bankruptcy will not stop business operations or can be called a business going concern. According to this law, companies can continue their operations even though they are deemed unable to pay their debts. This is different from what is explained in the Limited Liability Company Law which requires the dissolution of the company after it reaches a level of inability to pay debts. This raises questions that are formulated in the problem formulation, namely first, how to implement the principle of business continuity (Business Going Concern) in bankruptcy cases, second, what is the responsibility of the Curator due to the implementation of a going concern which fails in its implementation due to the company's stock valuation decreasing. This research uses a normative legal method supported by a statutory approach. The results of this research conclude that, firstly, if the curator assesses that there is potential to increase the valuation value of the bankrupt debtor, then going concerned is the right way as proven by analysis from the auditor to fulfill the debtor's achievements. Second, if after carrying out a business going concern the company's value continues to decline, then the curator should stop business activities and immediately settle the bankruptcy assets.

CURATORS ARE VULNERABLE TO BE CRIMINALIZED AND CRIMINATED IN BANKRUPTCY AND PKPU PROCESSES

<p>The Curator is one of the important organs in the debt settlement process between debtors and their creditors through bankruptcy law instruments. Based on Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations (PKPU), the Curator is given broad and broad duties and powers in managing and settling the assets of a bankrupt debtor. Because since being declared bankrupt by the court, the debtor has lost his right to manage his business and assets. The duties and authorities to administer the business and assets of the bankrupt debtor rest in the hands of the Curator, who works under the supervision of the Supervisory Judge. In carrying out its duties and authorities, the Curator must adhere to the provisions of the Law and the Professional Code of Ethics, namely being independent, having no conflict of interest and not handling more than 3 (three) Bankruptcy and PKPU cases. If in carrying out its duties and authorities it causes damage to the bankrupt assets, then the Curator must be legally responsible. That means, the Curator does not have the right of immunity or impunity in carrying out his duties and authorities to manage and settle bankruptcy assets in accordance with the provisions of the law. The Curator is not a public official. The Curator may be punished if his actions and decisions in administering and settling the bankrupt assets cause harm to the bankrupt assets. However, Law Number 37 of 2004 concerning Bankruptcy and PKPU does not include criteria for criminal acts and criminal sanctions for Curators. Because of this, Curators are vulnerable to being criminalized and punished.</p><p>The Curator is one of the important organs in the debt settlement process between debtors and their creditors through bankruptcy law instruments. Based on Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations (PKPU), the Curator is given broad and broad duties and powers in managing and settling the assets of a bankrupt debtor. Because since being declared bankrupt by the court, the debtor has lost his right to manage his business and assets. The duties and authorities to administer the business and assets of the bankrupt debtor rest in the hands of the Curator, who works under the supervision of the Supervisory Judge. In carrying out its duties and authorities, the Curator must adhere to the provisions of the Law and the Professional Code of Ethics, namely being independent, having no conflict of interest and not handling more than 3 (three) Bankruptcy and PKPU cases. If in carrying out its duties and authorities it causes damage to the bankrupt assets, then the Curator must be legally responsible. That means, the Curator does not have the right of immunity or impunity in carrying out his duties and authorities to manage and settle bankruptcy assets in accordance with the provisions of the law. The Curator is not a public official. The Curator may be punished if his actions and decisions in administering and settling the bankrupt assets cause harm to the bankrupt assets. However, Law Number 37 of 2004 concerning Bankruptcy and PKPU does not include criteria for criminal acts and criminal sanctions for Curators. Because of this, Curators are vulnerable to being criminalized and punished.</p><p><strong><br /></strong></p>

From seditiones, certamina civilia, secessiones, to intercessio


 
 
 
 The paper examines the significance of political crises (seditiones, certamina civilia, secessiones) in the history of the Early and Late Republic. Its main contentions are as follows. (1) The plebeian organization, created by a part of the ‘hoplite class’ (classis) as a syndicate of self-defence against what they considered persecution by the state authorities, became the champion of the Roman poor only after the viritane assignation of the ager Veientanus Capenas, which, by depriving the great landowners, i.e. the patricians, of the client labour force made debt-slavery an acute socio-political problem. Tribunes’ auxilium offered in 380 to the insolvent debtors led to a prodigious growth of the plebeian organisation which by 367 broke the patricians’ monopoly on political power. (2) The military revolt of 342 and the resulting upheaval of 341–339 fixed the democratic formula of the Republic’ empire, the principle of constant participation of the whole community in profits it generated, thus making possible the acceptance of horrible losses which went with continuous imperial expansion. (3) The third secession of 287/286 was a part of a revolutionary period when the plebeian organisation reverted to its original position of a counter-state, inherently antagonistic to the state institutions, winning for the tribunes unrestrained political initiative (lex Hortensia) and giving them an instrument for paralysing actions of state authorities aiming at thwarting it or putting in peril social, economic and political gains of the preceding century (re-formulation of the tribunes’ intercessio as their right to veto actions of the magistrates and resolutions of the senate they found harmful to the plebs’ interests).