Preferred Creditor Research Articles

Kedudukan Pemegang Polis dan Pekerja Dalam Hal Terjadinya Kepailitan Pada Perusahaan Asuransi

The aims of this study are 1) to find out and analyze the legal position of policy holders and workers according to laws and regulations in Indonesia, 2) to find out and analyze the regulations regarding protection for policy holders and workers who have provided legal protection or vice versa. This research uses normative juridical research methods with statutory and conceptual approaches. Based on the research results obtained, it can be seen that the position of policy and workers holders in insurance companies that are declared bankrupt through decisions determined by the commercial court is as preferred creditors. In this case, there is a conflict regarding the fulfillment of the rights of policy holders and workers, so to resolve the problem of conflict, legal principles are needed. In this case, the principle of lex posterior derogat legi priori is used, namely that new laws and regulations override old laws and regulations. The Insurance Law is a longer statutory regulation than the Job Creation Replacement Law, so the position of workers in insurance companies that are declared bankrupt has a higher position than the position of policy holders. In terms of the order of fulfillment of rights between the policy holder and the worker, the worker must be paid first. The forms of legal protection for policy holders are regulated in the Civil Code, POJK Insurance and Marketing of Insurance Products, OJK Law, Consumer Protection Law, Bankruptcy and PKPU Law, and Insurance Law. Legal protection for workers is regulated in the Civil Code, Bankruptcy and PKPU Law, PP on Wages, Job Creation Replacement Law, and Constitutional Court Decision Number 67/PUU-XI/2013.

Jaminan Goverment Guarantee Dalam Kredit Sindikasi (Sebagai Alternatif Pembiayaan Infrastruktur Jalan Tol)

The development of an area that has an impact on the community's economy and the fulfillment of the community's basic needs requires the development of road infrastructure that supports the distribution process to run quickly and efficiently. This development is to fulfill the mobility of the community so that they become mutually connected with other regions in order to create acceleration of regional development. The state in meeting the infrastructure needs for the development of the region is expected to be able to improve the surrounding economy and other areas that are connected to the construction of the road infrastructure. Based on the provisions of Law Number 38 of 2004 concerning Roads in Article 43 it states that toll roads are built to facilitate traffic in developing areas, to increase mobility and distribution of basic needs and industrial commodities. Toll roads are one of the infrastructures that are considered effective in meeting the mobility needs of the community. The construction of the toll road is a development project that requires a large amount of money. The government provides funding concessions for Business Entities appointed to carry out the construction of toll roads. One of the financing instruments that can be used by Business Entities in meeting the funding needs for Toll Road development is syndicated bank loans. Syndicated bank loans can be used with a guarantee, one of which is a Government Guarantee or Government Guarantee. The aim of this research is to know and understand the legal standing of government guarantees in syndicated bank loans. The legal theory used is Normative Law Theory to find the truth based on the applicable positive law. This legal research method is empirical juridical based on the school of sociological jurisprudence based on normative law by observing laws and regulations. The results of the study found that syndicated loans are different from single loans in circulation in general. Syndicated credit begins with the stages of offering credit to syndicated participants (participants), giving mandates, memorandum information, meeting prospective debtors to obtain syndicated credit approval, signing the credit agreement and ending with publication. Guarantees on syndicated loans are preferred creditors who have the right to pay off credit first.

Kepastian Hukum Kreditur Preferen Dalam Upaya Parate Executie Perjanjian Fidusia Menurut Undang-Undang Nomor 42 Tahun 1999 Tentang Jaminan Fidusia

Fidusia comes from the word fides means belief. Juridically, the Fiduciary Giver has transferred his material rights to the Fiduciary Giver gives the Fiduciary Giver the right to control the fiduciary guarantee object. Based on UUJF, it has been regulated to the execution of the Fiduciary Guarantee Object if the giver of fiduciary fails to promise by the execution of the executorial title. Through the decision of the Constitutional Court Number 18/PUU-XVII/2019 that in order to carry out an execution if the debetor does not wish to voluntarily submit the Fidicuary Guarantee Object, it must be requested to the Chair of the Court and the determination of breach of contract must have an agreement between creditors and debtors or through legal remedies. Then questioned the legal certainty of preferred creditors in the efforts of the parate executie. This legal research is a normative legal research. The analytical method for this type of normative legal research is a prescriptive method using a statute approach and a case approach. This study aims to determine the legal certainty of preferred creditors in the efforts of parate executie of the fiduciary agreement based on UUJF and the legal consquences and judges’ considerations which are the basis for deciding the case application for the Constitutional Court Decision Number 18/PUU-XVII/2019. The result of the research conclude that legal certainty legal certainty has been stated in UUJF for creditors by executing Fidicuary Guarantee if the debtor fails the promise. The certainty is included in order to “Demi Keadilan Berdasarkan Ketuhanan Yang Maha Esa” means it has the same executorial power as court decision has obtained permanent legal force. However, in reality the execution process cannot be carried out automatically. so that the execution process becomes longer and it is quite difficult to achieve the executive parate. The Constitutional Court emphasizes on an agreement on when the breach of contract between creditors and debtors occurs so that creditors can carry out the parate executie. So that it is often used by the Fiduciary to take refuge in the interpretation of the Constitutional Court, which is actually the default clause agreed in the agreement.

The Principle of Justice in the Weakness of Objective Rights Holders Against Privileges Rights Holders

AbstractMaterial guarantees create material rights with superior characteristics. One is absolute, that is, the right holder can enforce material rights against anyone. It is as if nothing can beat the holder’s position of material guarantee in the event of a conflict with concurrent creditors and creditors holding privileges. However, this absolute character can be weakened by law. In certain circumstances, such as the right to collect the cost of saving the collateral object, the position of the creditor holding the material guarantee must surrender to the creditor with the privilege. Creditors can even threaten their position by not getting full repayment because the object of the material guarantee is to pay the bill from the creditor who holds the privilege first. The problem analyzed in this article concerns the principle of justice associated with weakening the characteristics of material rights in material guarantees for privileges. This study uses statutory, conceptual, and case approaches. The result of this study is that the creditor’s bills of the holder of the privilege arising from the salvage of collateral objects must take precedence over the bills of creditors of property security holders. This is considered fair, whereby the salvage of collateral causes creditors to remain in their preferred creditor position.Keywords: Justice; Absolute; Material Rights; Material Security; Privileges.

The Effect of the Execution of the Sale of the Right Object on the Position of Bank Creditors

The results of this study show that the right of liability is the object of guarantee that is most in demand by creditors (banks) as debt collateral. The value of the rights contained in thecertificate of rights of dependents has an important influence in determining the position of creditors as creditors who have preferential rights or only limited to as a concurrent creditor. If the value of the dependent rights has a greater value than the debtor's debt, then the creditor's position as the holder of the liability right is the preferred creditor, which takes precedence repayment of it than other creditors. However, the determination ofthe creditor's position as a preferred creditor or not can also be viewed from the proceeds of the sale of the object of liability from the results of auction execution. If the selling price of theobject of liability is greater than the debtor's debt, the creditor has the right to take precedence over full repayment by taking the proceeds Net sales are only limited to debtors. Meanwhile, if the proceeds from the sale of the object of liability are smaller than the debtor's debt, then the remaining debt of the debtor positions the creditor as a concurrent creditor meaning that the repayment of the remaining debtor is divided equally with other creditors

Perlindungan Hukum Kreditor Preferent Pada Perusahaan Asuransi Yang Pailit

Legal protection for policyholders, insured or insurance participants, in relation to insurance company bankruptcy, Indonesian positive law has actually provided a way out with several alternative options, namely based on the provisions of the Civil Code, the Bankruptcy Law, and the provisions of the Indonesian Civil Code. Law No.40 of 2014 stipulates explicitly that the rights of the policyholder/insured or insurance participant for the distribution of the assets of an insurance company bankrupt by court or liquidation have a higher (primary) position than the rights of other creditors. Article 52 paragraph (1) states “In the event that an insurance company, sharia insurance company, reinsurance company or sharia reinsurance company is bankrupt or liquidated, the rights of the policyholder, the insured or participants for the distribution of their assets have a higher position than the rights of other parties”. The meaning of this sentence is thar the policyholder has a position as a preferred creditor, namely a creditor whose position takes precedence over other creditors in the distribution of bankruptcy assets of an insurance company. In the distribution of bankruptcy assets, the policyholder has the right to demand priority payment of his rights in accordance with the previously agreed agreement.

Perlindungan Hukum Bagi Hak-Hak Tenaga Kerja Dalam Pembagian Hutang Harta Pailit

Introduction: Differences in legal position related to the division of bankruptcy between creditors holding collateral and labor rights in the of the Bankruptcy Law and in other laws and regulations will actually create legal uncertainty in providing guarantees of protection to labor rights and cause conflicts between legal norms.
 Purposes of the Research: To find out the various provisions of laws and regulations governing labor rights for the division of bankrupt debts and synchronization between Law No. 37 of 2004 concerning Bankruptcy with other laws and regulations in regulating labor rights to the division of bankrupt and the application of legal protection of labor rights to the division of bankrupt debts. 
 Methods of the Research: The type of research used is normative juridical research. The nature of this research is descriptive. The data source used is secondary data. The nature of this research is descriptive analytical research and drawing conclusions using deductive methods. 
 Results Originality of the Research: The research results show that the synchronization of Law Number 37 of 2004 concerning Bankruptcy with other provisions in the interpretation of the law has been assigned on the decision of the Constitutional Court Number 18/PUU-VI/2008 and 67/PUU-XI/2013 that the payment of labor wages must take precedence over the bills of the state and separatist creditors while severance and other rights are granted after the compliance of the invoices of separatist creditors. In addition, the legal position for labor is determined by the Law and the decisions of the Constitutional Court as a preferred creditor of the proceeds of the sale of the boedel and its enforcement of the law refers to the lex specialis derogat lex generalis while take to consideration other term governing the rights of creditors. Legal implications to bankruptcy companies, the compliance of labor rights is determined by the proceeds of the sale of boedel which is based on the provisions in Article 95 of Law No. 11 of 2020 about Omnibus Law as amended from the provisions regulated in Law No. 13 of 2003 about Manpower, Article 49 and Article 50 of Government Regulation No. 36 of 2021 about Wages.

Doing more with less: The catalytic function of IMF lending and the role of program size

Financial assistance provided by the International Monetary Fund (IMF) is supposed to unlock other financing, acting as a catalyst for private capital flows. The empirical evidence of the presence of such a catalytic effect has, however, been mixed. This paper shows that a possible explanation for the rather inconclusive empirical evidence to date is the neglect of the size of an IMF program. Applying a novel identification strategy to account for endogenous selection into (large) adjustment programs, and using a comprehensive data set spanning the years 1990-2018, we show that the catalytic effect of IMF financial assistance is weakened – and potentially reversed – if the size of a program exceeds a certain level. We argue that large IMF financial assistance coupled with the IMF’s preferred creditor status can lead to a crowding-out of private investors by increasing their loss in the event of default. Our findings add to the debate on the optimal size of Fund-supported programs and can also inform the broader policy discussions on the adequacy of IMF resources.

KEDUDUKAN HUKUM PEMEGANG HAK TANGGUNGAN ATAS TANAH HAK GUNA BANGUNAN DI ATAS TANAH NEGARA YANG JANGKA WAKTUNYA TELAH BERAKHIR

The current positive law no longer allows HGB to be extended continuously, and must return to state land. One of the reasons for the loss of mortgage rights is related to the expiration of the HGB. The purpose of this study is to analyze the legal consequences and legal protection for creditors holding mortgage rights after the HGB expires. The results of the research are that the lex posteriori derogat lex priori principle results in PP 18/2021 which is in the hierarchy of the Job Creation Law to override old regulations that are at the same level as government regulations. With the implementation of Article 37 PP 18/2021 there is a gap in the position of banks as preferred creditors to become concurrent creditors because the HGB has returned to become state land. In non-litigation efforts by regulating clauses related to extension, renewal and re-application of HGB in credit agreements that are preventive in nature against Article 37 PP 18/2021. Litigation efforts against the abolition of mortgage rights must be carried out in a default suit or unlawful act.

IMF's Surcharges as a Threat to the Right to Development.

This article focuses on the implications of the IMF’s surcharges policies, jointly with its de facto preferred creditor status, on the right to sustainable development of sovereign borrowers. The article argues that, while surcharges are not effective in limiting access to IMF credit, they inequitably distribute the IMF’s operating costs, are disproportionate, pro-cyclical, very costly for developing countries, and non-transparent. Furthermore, if surcharges are theoretically a way to protect the IMF from potential risks of default, the article questions the IMF’s de facto preferred creditor status, as it precisely denies the possibility of granting debt relief in case of insolvency, ultimately affecting the right to development of —mainly— middle-income borrowing countries.

The Rights of Creditors of Guarantee Holders in a Limited Liability Company Declared Bankrupt

This study aims to analyze and explain the position of creditors as holders of the pledge of shares of a Limited Liability Company declared bankrupt. This study also aims to determine the legal remedies creditors can take if they experience these problems. This study uses a normative juridical research method with a statute and conceptual approach. The data was collected using literature study techniques on primary, secondary, and tertiary legal materials. The collected legal materials are then analyzed using qualitative data analysis methods. The results show that the position of creditors as holders of the pledge of shares of a Limited Liability Company declared bankrupt is preferred creditors. However, the position of creditors will mutatis mutandis change from preferred creditors to concurrent creditors because the collateral object no longer exists. In addition, creditors can make efforts as holders of the pledge of shares related to Limited Liability Company declared bankrupt, namely preventive and repressive efforts. However, repressive efforts are insufficient to provide justice, certainty, and legal protection to creditors as holders of the pledge of shares. Therefore, it is recommended to creditors as holders of the pledge of shares to make preventive efforts: authentic deed, authorization letter to sell the collateral object, adding another collateral object, and auditing prospective debtors and collateral objects. In addition, it is recommended for the Government to harmonize and regulate several applicable laws and regulations regarding the pledge of shares. In this case, creditors as holders of the pledge of shares have more power, certainty, and legal protection in the pledge of shares agreement in the future.

The Customer Protection of Baitul Maal Wa Tamwil (BMT) on Economic Law Perspective

This study aims to comprehensively determine the customer protection of Baitul Maal Wa Tamwil (BMT) from an economic law perspective. This study is a literature review, which uses a normative juridical approach. The data collection technique used in this research is the documentation technique. At the same time, the analytical technique used in this study is descriptive qualitative, where the author will describe the data related to Baitul Maal Wa Tamwil (BMT) in detail and then do an inductive analysis using the perspective of economic law. After conducting in-depth research, it was concluded that customers who deposit funds at Baitul Maal Wa Tamwil (BMT) do not receive guarantees from the government (because no law regulates it) if there is a crisis in BMT. Therefore, if a Baitul Maal Wa Tamwil (BMT) goes bankrupt, then based on the Civil Code (KUH Perdata), customers who deposit funds in Baitul Maal Wa Tamwil (BMT) are in the same position as concurrent creditors. As a concurrent creditor, the right to get a refund must be shared with other creditors after the Baitul Maal Wa Tamwil (BMT) assets are used to settle the obligations of the Baitul Maal Wa Tamwil (BMT) to the preferred creditor

The Customer Protection of Baitul Maal Wa Tamwil (BMT) on Economic Law Perspective

This study aims to comprehensively determine the customer protection of Baitul Maal Wa Tamwil (BMT) from an economic law perspective. This study is a literature review, which uses a normative juridical approach. The data collection technique used in this research is the documentation technique. At the same time, the analytical technique used in this study is descriptive qualitative, where the author will describe the data related to Baitul Maal Wa Tamwil (BMT) in detail and then do an inductive analysis using the perspective of economic law. After conducting in-depth research, it was concluded that customers who deposit funds at Baitul Maal Wa Tamwil (BMT) do not receive guarantees from the government (because no law regulates it) if there is a crisis in BMT. Therefore, if a Baitul Maal Wa Tamwil (BMT) goes bankrupt, then based on the Civil Code (KUH Perdata), customers who deposit funds in Baitul Maal Wa Tamwil (BMT) are in the same position as concurrent creditors. As a concurrent creditor, the right to get a refund must be shared with other creditors after the Baitul Maal Wa Tamwil (BMT) assets are used to settle the obligations of the Baitul Maal Wa Tamwil (BMT) to the preferred creditor

ANALISIS YURIDIS PENGGUNAAN ASET PERSONAL GUARANTEE DALAM MELUNASI UTANG PAILIT

In bankruptcy, the use of personal guarantee assets is something that can be done in bankruptcy debt if the assets belonging to the main debtor cannot meet repayments, in bankruptcy, there are 3 types of credit, namely preferred, separatist and concurrent creditors, the three creditors are creditors who have rights and obligations. their respective positions, such as preferred creditors who have the priority right to have their debts repaid, then separatist creditors who have collateral to pay their debts, and separatist creditors who do not have collateral rights or the right to loans. If the debtor's payment to the creditor exceeds the limit after the assets of the main debtor have been auctioned, therefore the responsibility of the Personal Guarantee is to provide the assets in paying off the debt of the main debtor. Personal guarantee assets are guarantees that can be used to pay off their debts because if the assets belonging to the main debtor cannot be sufficient to pay the total debt, the personal guarantee will be responsible for settlement, the assets belonging to the personal guarantee can be directly auctioned, the payment of the bankruptcy debt is calculated by method “Pro Rata Pari Passu Parte”. The Personal Guarantee which guarantees its assets to creditors can also be bankrupt if the main debtor is unable to pay its debts.

Kewenangan Kurator Dalam Pengurusan Dan Pemberesan Harta Pailit Dalam Hal Negara Sebagai Kreditor Preferen

In handling and settling of bankruptcy debtor wealth is carried out by the curator under the supervision of a judge with the main objective of using the sale of these assets to pay all debts of the bankrupt debtor proportionally (prorate parta) and based on the structure. The existence of a state towards a bankrupt company in collecting tax which is a state right. With the Constitutional Court Verdict No. 67 / PUU-XI / 2013 results in uncertainty. Which should be paid first, tax debt or labor wages. Therefore a problem arises namely what is the responsibility of the curator in handling and settlement of bankrupt assets, how Law Number 37 of 2004 Concerning Bankruptcy and Delaying Obligations of Debt Payment in protecting the duties of the curator in terms of handling and settlement bankrupt assets, how is the State's position as the preferred creditor after the Constitutional Court's verdict No. 67 / PUU-XI / 2013. The type of writing method applied in this research is normative legal research. The method of approach used is the method of legislation approach using primary, secondary and tertiary legal materials. The data needed is collected by means of library research and field research by conducting interviews and then analyzed by qualitative deductive analysis methods to produce descriptive data. Based on the results of the study it can be concluded that the. The curator cannot be punished if he has carried out his duties according to the Judge's provisions. The dispute over the right to precede only arises when there are bills for labor wages and tax debts all at once.

How Concurrent Creditors Are Treated in Company’s Bankruptcy: A Comparison into Indonesia and Singapore

During the distribution of wealth in Indonesia’s corporation bankruptcy procedures, the wealth is often used to satisfy the debts owed by the debtor towards preferred creditors and secured creditors. The long process and enormous cost of the bankruptcy process before paying back the concurrent creditors puts a lack of emphasis towards these types of creditors’ rights since the company is dissolved and theoretically will not allow them to get any payment towards their loans given to the company. This leads to concurrent creditors earning a status of uncertainty and confusion in earning their credits. Compared to Singapore, even if the status of payment is quite similar to Indonesia, Singapore provides a better bankruptcy law system that incorporates public opinions and provides a better system for unfair preference and undervalued transactions that provides more wealth to be distributed to concurrent creditors during the distribution of wealth.

NON-PERFORMING LOAN SETTLEMENT FOR RESIDENTIAL PROPERTY DEVELOPERS AMID THE COVID-19 PANDEMIC

This research discusses the issue of Non-performing loan settlement for residential property developers amid the Covid-19 pandemic. The legal research used is a normative juridical method with a statutory approach. This research was conducted by making an inventory of primary and secondary materials to assess published legal issues. This research examines that the settlement of property developers' bad credit can be done by means of credit rescue and credit settlement. Credit rescue is carried out by providing easy conditions for debtors so that they are expected to complete their credit, which can be done by restructuring credit both inside and outside the court. Meanwhile, credit settlement is carried out by executing the collateral object made by the creditor, such as taking collateral, cessie, subrogation, execution of mortgage rights, lawsuit for default and bankruptcy. In the event of bad credit, creditors will generally choose the bankruptcy route to resolve bad credit by the developer. The bankruptcy of property developers will certainly be very detrimental to property consumers because the position of property consumers is only as concurrent creditors, which means that consumers will get the final payment after preferred creditors and separatists.

Legal Cancellation of Property Rights Certificate to Land which is Enough with Insurance Rights

If observed, the provisions of Article 32 paragraph (1) of the PP on Land Registration have weaknesses, where the state does not guarantee the truth of the physical data and juridical data presented and there is no guarantee for the certificate owner because at any time they will get a lawsuit from other parties who feel aggrieved over issuance of certificate. And if it turns out that in the future the land rights are disputed and the mortgage giver is declared not as the person / party entitled to the land, which will thus have implications for the mortgage that burdens the land rights. This study aims to find out the legal consequences of canceling a certificate of ownership of land that is being encumbered by Mortgage at the Land Office of Palembang City and to find out the legal protection for separate creditors as holders of Mortgage on the canceled land title certificate. The approach method used in writing this law is sociological juridical which means carried out with observation steps carried out in accordance with the formulation of the problem, collecting data from literature or doctrinal research from secondary materials and interviews and to find out the problems being researched which in this case relates to the object. study. The research problem is analyzed with the theory of authority, the theory of legal certainty, and the theory of legal protection. The results of the study indicate that the legal consequences of canceling the certificate of ownership of land that are being encumbered with Mortgage Rights, namely the change in the position of the creditor, which was originally located as a preferred creditor which has material rights, then is located as a concurrent creditor who has individual rights. Legal protection for creditors for the abolition of the object of mortgage can be obtained with preventive legal protection and repressive legal protection. Preventive legal protection is legal protection that is preventive in nature, that is, it can be through an agreement by including a clause regarding the replacement of the dependent object with other objects owned by the debtor in the event of the elimination of the right to the dependent object that is burdened with the mortgage.

ANALISIS TERHADAP PEMBATASAN PERLINDUNGAN HAK KEBEBASAN BEREKSPRESI DALAM MEDIA SOSIAL MENURUT HUKUM HAM INTERNASIONAL

Court Decision Number 274.Pdt.Sus-PKPU/2020/PN Niaga.Jkt.Pst is a lawsuit filed by workers due to non-implementation of the Decision from Industrial Relations Court by PT. Sari Keramindo International. The main problems: how the authority of Central Jakarta Commercial Court in examining and deciding disputes between workers and PT. Sari Keramindo International and how is the dispute resolution process in homologation decisions between workers and PT. Sari Keramindo International based on the regulations. This research is normative descriptive legal research trough literature studies, analyzed qualitatively and conclusions are drawn using deductive methods. The conclusion: Commercial Court has authority to adjudicate disputes between workers and PT. Sari Keramindo International due to wages and severance pay which can categorized as debt arising from law due to the non-implementation of the decision of Industrial Relations Court and provisions in Article 1149 (4) of Civil Code and Article 81 number 33 of Law Number 11 of 2020 which confirms that the workers positioned as preferred creditors for unpaid wages and other rights. As well as the existence of discrepancies in Decision Number 274/Pdt.Sus-PKPU/2020/PN Niaga.Jkt.Pst related to expiration of time period in deciding on homologation decisions as stipulated in Article 284 (4) of Law Number 37 of 2004.

Preferred and non-preferred creditors

International financial institutions (IFIs) generally enjoy preferred creditors treatment (PCT). Although PCT rarely appears in legal contracts, when sovereigns restructure bilateral or commercial debts they normally pay IFIs in full. This paper presents a model where a creditor, such as an IFI, that can commit to lend limited amounts at the risk-free rate and can refrain from lending into arrears is always repaid and adds value. The analysis suggests that IFIs and market lenders can both enhance welfare, even if banning commercial borrowing can sometimes be optimal. To maintain their status, preferred lenders should offer low cost financing in volumes that are consistent with countries' incentives to repay even in bad states. This suggests such lenders should not differentiate lending interest rates according to risk and should not participate in the restructuring of commercial debt.