FORMS OF LEGAL
PROTECTION FOR LESSORS IN LEASING AGREEMENTS AFTER THE CONSTITUTIONAL COURT
DECISION NO. 18/PUU-XVII/2019
Immaculata Damara Putri1, I Gusti Ayu Ketut
Rachmi Handayani2, Yudho
Taruno Muryanto3, Rena Zefania
Ritonga4, Vicariya Retnowati
Boong5 �
Sebelas Maret
University Surakarta, Central Java, Indonesia
[email protected]1,
[email protected]3, [email protected]5
Received:
26-05-2022�������������������� ��������������� Accepted: 01-06-2022���������������������� ��������������� Published: 17-06-2022������
ABSTRACT
Following
on Article 15 Paragraph 2 and Paragraph 3 UU 42/1999, so in practice, Finance
Companies, as the lessor, always apply a fiduciary guarantee to the leasing
object in the leasing agreement. The power of Fiduciary Deed to execute the
leasing object automatically if a debtor breaches of contract has amended its
meaning after Constitutional Court released The Decision No. 19/PUU-XVII/2019.
It is clearly stated that Finance Companies need a court decision to execute
the leasing object of fiduciary guarantee if debtor does not want to surrender
the object voluntarily. Therefore, based on utility theory, the purpose of this
thesis is knowing whether The Decision No. 19/PUU-XVII/2019 has benefit value
for Finance Companies. Then, from this thesis, we want to dig deeper regarding
the effort to protect financing companies� interest in making leasing agreement
with debtor. This research is a normative legal research using statute
approach, conceptual approach, and case approach. The conclusion of this
research is The Decision of Constitutional Court No. 19/PUU-XVII/2019 does not
have benefit value for Finance Companies, and also Finance Companies need to
more emphasize the leasing agreement related leasing object execution if debtor
breaches the contract, then make the leasing agreement become notarial deed.
Keyword: Financing
Company, Fiduciary, Leasing, Decision of Constitutional Court.
Corresponding Author: Immaculata Damara Putri
E-mail: [email protected]
INTRODUCTION
Financial institutions were born and grew in Indonesia
with various alternative services offered as a form of implementation of the
ASEAN Infrastructure Financing Mechanism Task Force (AIFM Task Force) in order
to follow up on the commitments of the 10th ASEAN Finance Ministers' Meeting
(AFMM) in 2006 in Cambodia for economic recovery after the economic crisis that
occurred simultaneously in the ASEAN region around 1997-1998 (Janis, 2012). This financial institution is an institution that is
present in the midst of society to answer all community needs in the economic,
social and business fields.
This financial institution is part of a financial
institution, only in carrying out its business activities, this financial
institution places more emphasis on financing service activities, providing
funds, and capital goods without attracting directly from the public. (Abdulkadir, 2004) explained the term financing institution, namely
"a business entity that carries out financing activities in the form of
providing funds or capital goods by not withdrawing funds directly from the
public".
The legal basis for the birth of financial
institutions in Indonesia is through the Decree of the President of the
Republic of Indonesia No. 68 of 1998 concerning Financing Institutions, which
then because since 2012 the position of financial institutions is under the
guidance and supervision of the OJK (Financial Services Authority) then the
legal basis is the Financial Services Authority Regulation Number 29/POJK.05/2014
concerning the Operation of Financing Companies. Amended and updated through
the Regulation of the Financial Services Authority of the Republic of Indonesia
Number 35 / POJK.05/2018 concerning the Business Implementation of Financing
Companies (POJK 35/2018).
One form of financing that is most favored and needed
by the public is leasing. Leasing is one of the business activities of finance
companies which is quite popular in the business world because the object of
leasing itself is a capital item used by entrepreneurs to support their
business activities. Starting from capital goods that are relatively expensive,
such as leasing of aircraft by airlines, production machines, to leasing of
goods for office and daily needs. Almost all business fields can be said to
have been entered by the leasing business, including but not limited to the
fields of transportation, industry, construction, agriculture, mining, offices,
health, and others.
(Andasasmita, 2001) defines that leasing is related to agreements which
in entering into a contract are based on a certain relationship between the
duration of a contract and the duration of use (economical) of the goods which
are the object of the contract and it is agreed that the one party (the lessor)
without relinquishing the rights his/her own by law is obliged to hand over the
right of enjoyment of the item to another party (lessee), while the lessee is
obliged to pay adequate compensation for enjoying the item without the
intention of owning it (juridichie eigendom).
This capital goods financing (leasing) carries a
considerable risk, given that the leasing transaction is a transaction that
involves a large amount of capital and the possibility of default by the
lessee. Especially in a developing country such as Indonesia, in order to
ensure the smooth and orderly payment of rents (rentals) and prevent losses for
the lessor, the facts on the ground state that most finance companies as
lessors require the existence of another guarantee institution which is
expected to guarantee security of the lessor, because the object of the lease
is a movable object. In practice, there are several financing companies that
use fiduciary guarantees, where the object of the fiduciary guarantee is the
object of the leasing.
Fiduciary guarantee is one of the material guarantees
known in positive law (Mulyadi & Widjaja,
2005). Fiduciary guarantees provide a position by prioritizing fiduciary
recipients over other creditors. Fiduciary guarantee objects are divided into
two categories, namely:
1.
Movable objects both
tangible and intangible;
2.
Immovable objects,
especially buildings that are not encumbered with mortgage rights. Fiduciary
guarantees are also referred to as material guarantees, in the process of
transferring ownership of an object that is used as collateral from a debtor
called a fiduciary giver to a creditor called a fiduciary recipient, with no
transfer of physical control of the object so that the owner remains in control
of the object. The point is that only the ownership is temporarily transferred
to the creditor until the debtor settles his debt obligations and the debtor
can still use the object for his daily needs or his business needs.
The form of proof of a fiduciary guarantee holder is a
fiduciary guarantee certificate. The function of the fiduciary guarantee
certificate is that the creditor has the right to sell objects that are the
object of the fiduciary guarantee on his own power if the debtor is in breach
of contract (default). If you look at Law Number 42 of 1999 concerning
Fiduciary Guarantees (UU 42/1999), in paragraph (1) the words on the fiduciary
guarantee certificate are stated "FOR JUSTICE BASED ON THE ALMIGHTY
GOD". The existence of these words has the same executorial power as a
court decision that has permanent legal force. Executional power is a type of
power of execution of state instruments which are authorized by the Court to
implement decisions. "... this executorial title has a juridical
consequence that the holder of the Fiduciary Guarantee Certificate has the same
position as the person who has held a court decision that has permanent legal
force, so that the holder of the Fiduciary Guarantee Certificate has the authority
to execute the object of the Fiduciary Guarantee" (Prasetyo, 2020).
Before the decision of the Constitutional Court was
issued, the fiduciary guarantee institution allowed the fiduciary giver to
control the guaranteed objects, to carry out business activities financed from
loans using fiduciary guarantees. Furthermore, "the execution of objects
that are objects of fiduciary guarantees can be carried out by the fiduciary
recipient if the fiduciary giver is in default." The reason for the
execution of the object of the fiduciary guarantee is to obtain the repayment
of the receivables as referred to in Article 29 paragraph (1) of Law 42/1999.
The existence of the Constitutional Court Decision No.
18/PUU-XVII/2019 has a great impact on finance companies, especially those
engaged in leasing, which have been implementing fiduciary guarantee practices
for leasing objects, especially in the form of protection for finance companies
in the future, especially in terms of the debtor performs actions that are
contrary to the principle of good faith.
METHOD
Legal research is a
process to find the rule of law, legal principles, and legal doctrines in order
to answer the legal issues faced. This research uses normative juridical law
research or known as doctrinal research. According to Terry Hutchinson (Marzuki, 2008):
�Doctrinal research:
research which provides a systematic exposition of the rules governing a
particular legal category, analyzes the relationship between rules, explains
areas of difficulty and, perhaps, predicts future development�.
Which
when translated means:
�Doctrinal research is
research that provides a systematic explanation of the rules governing a
particular category of law, analyzes the relationship between regulations,
explains areas of difficulty and perhaps predicts future development�.
So, it can be interpreted that doctrinal research
is research that provides a systematic explanation of the rules governing
certain legal categories, analyzes the relationship between rules, Explains
difficult things. This research can be done by using the concept of Law in
book, namely by conducting a literature review (Soekanto
and Mamudji, 2004).
Through a process to find the rule of law,
legal principles and legal doctrines so as to be able to answer the legal
issues studied. This type of research is normative, which is carried out by
examining various formal legal rules such as laws, regulations and also
literature on theoretical concepts so that they can be related to the problems
to be studied.
RESULTS AND DISCUSSION
1.
Legal Aspects of Financing Institutions
�Along with the development
of community needs in the economic field, it has an impact on increasing the
interaction of interests in society. In essence, humans cannot fulfill their
own needs, for example someone has money but the desired item is in the power
of another person, so there is a buying and selling interaction. There are
people who want to own a car, but do not have the cash to buy it, on the other
hand, there are people who have excess funds and want to invest their funds in
the form of capital so that their money continues to grow, so there is a
practice of buying and selling in installments and so on which forms the
interaction between those who have capital and need capital.
The
interaction between those who have capital and who need capital in its
development creates a legal institution known as a financial institution which
is an alternative source of funds for individuals or business entities that
need funds to meet their needs.
Article
1 of Presidential Decree 9/2009 states that: "Financing Institutions are
business entities that carry out financing activities in the form of providing
funds or capital goods", then paragraph (2) determines: "Financing
Companies are business entities specifically established to carry out business
leases, Factoring, Consumer Financing, and/or Credit Card business�.
The
same definition is also given in Article 1 number 2 of the Minister of Finance
Regulation 84/2006 which stipulates: �Financing Company is a business entity
outside of Banks and Non-Bank Financial Institutions specifically established
to carry out activities that are included in the business field of Financing
Institutions.
Since
the establishment of OJK through Law Number 21 of 2011 concerning the Financial
Services Authority, the implementation of an integrated regulatory and
supervisory system for all activities in the financial sector has been
implemented by OJK. The regulatory and supervisory duties carried out by the
Financial Services Authority include financial service activities in the
Banking sector, financial service activities in the Capital Markets sector, and
financial service activities in the Insurance, Pension Fund, Financing
Institutions, and Other Financial Services Institutions sector. Legal certainty
regarding financing institution regulations was revoked and turned to OJK, so
that the legal basis for financing institutions is POJK 35/2018.
Article
1 paragraph (1) of POJK 35/2018 stipulates that a finance company is: �A
business entity that carries out financing activities for goods and/or
services�. The types of business activities of finance companies based on
Article 2 of POJK 35/2018 consist of 4, namely as follows:
a. Investment
Financing;
b. Working
Capital Financing;
c. Multipurpose
Financing; and/or;
d. Other
financing business activities based on the approval of the Financial Services
Authority.
2.
History
and Definition of Lease/Leasing
The
existence of leasing legal institutions in Indonesia only occurred in the early
1970s and the regulation was born around 1974. Several regulations in 1974 were
the spearhead of the history of the development of leasing law in Indonesia.
The regulations are:
a. The
leasing business activity was only introduced in 1974 through the Joint Decree
of the Minister of Finance, Minister of Industry and Minister of Trade of the
Republic of Indonesia No. KEP - 122/MK/IV/2/1974, No.32/M/SK/2/1974, No.30/Kpb/1/1974 dated 7 January 1974 concerning Leasing Business
Licensing.
b. Decree
of the Minister of Finance of the Republic of Indonesia No. KEEP.
649/MK/IV/5/1974 dated 6 May 1974 concerning Leasing Business Licensing.
c. Decree
of the Minister of Finance of the Republic of Indonesia No. Kep.
650/MK/IV/5/1974 dated May 6, 1974 concerning Affirmation of Provisions on
Sales Tax and Amount of Stamp Duty on Leasing Business.
d. Announcement
of the Director General of Monetary Number: Peng 307/DJM/II.1/7/1974 dated July
8, 1974 concerning Guidelines for the Implementation of Leasing Regulations.
e. Presidential
Decree No. 61 of 1988 and Decree of the Minister of Finance No.
1251/KMk.031/19888 dated December 20, 1988.
Since
1980 the number of leasing companies has increased from year to year to finance
the provision of capital goods in the business sector. Capital financing
activities are either on a finance lease or an operating lease for use by the
lessee for a certain period of time.
Leasing
comes from the English word "lease", which means to rent out. The
definition of Leasing according to Article 1 number 5 of Presidential Decree
9/2009 is: "Financing activities in the form of providing capital goods,
either by Lease with an option (Finance Lease) or Lease without an option
(Operating Lease) to used by
the Lessee (Lessee) for a certain period of time based on installment
payments�. This is also confirmed in Article 1 point 5 of POJK 35/2018 which
states: "Finance Lease, hereinafter referred to as Financing Lease, is a
financing activity in the form of providing goods by a Financing Company to be
used by debtors for a certain period of time, which substantially transfers the
benefits and risks of the goods being financed".
According
to Brian Coyle (2000) regarding the notion of leasing, is as follows: "A
lease is an agreement in which the owner of an item, for example a business
asset or a piece of real estate, allows someone else to use it for a specified
time, in return for a rental. The owner of the leased asset is the lessor and
the user of the asset is the lessee�. Suandy stated
that a lease is: �An agreement between the lessor and the lessee�. The lessor
provides an option to the lessee to use capital goods for a certain period of
time with a payment in stages from the lessee whose value is based on what was
agreed. At the end of the contract period, the lessee may be given the option
to purchase capital goods. Therefore, during the contract period, ownership of
capital goods remains with the lessor (Siregar et al., 2021).
(Sunaryo, 2014) argues that:
"In general, leasing is an equipment funding, which is a financing
activity in the form of equipment or capital goods for the company to be used
in the production process." Abdulkadir Muhammad
provides a definition: "Leasing is a special form of leasing, namely in
the form of company financing in the form of providing capital goods used to
run its business by paying rent for a certain period of time" (Murniati, 2004).
When
viewed from a legal aspect, leasing has 4 characters, including:
a. Agreement
between the lessor and the lessee;
b. Based
on the leasing agreement, the lessor transfers the right to use the goods to
the lessee;
c. The
lessee pays the lessor the lease fee for the use of the asset;
d. The
lessee returns the goods to the lessor at the end of the specified period for a
period less than the economic life of the goods (Siregar et al., 2021).
Based
on the explanation above, the concept of leasing or leasing is a lease. In a
leasing relationship between the lessor and the lessee, the legal owner of the
object of the lease is the party who rents it out, not the lessee. The position
of the tenant here is only to have the right to control the object of the lease
and enjoy the results of the use of the object of the lease with limitations as
agreed with the party who rents out in a lease agreement. The theoretical
principle of ownership of the object in the lease agreement also applies to the
leasing agreement. This is expressly regulated in Article 3 paragraph (3) of
the Minister of Finance Regulation 84/2006 concerning Financing Companies,
which reads as follows: �As long as the Lease Agreement is still valid, the
ownership rights to the capital goods of the object of the Lease transaction
are with the Financing Company�.
It
can be said that the ownership of capital goods as the object of lease in a
leasing agreement is legally owned by the lessor. The lessee only controls the
goods to be used for its usefulness to support the smooth running of its
business. According to leasing theory, in a leasing transaction, sometimes the
lessee is given the opportunity to own capital goods, namely if the lessee
exercises the purchase option. Thus, if the lessee exercises his purchase
option, the legal position of the lessee at that time changes, namely from the
lessee to the owner of the leasing object. If the lessee wants to become the
owner of the goods, the consequence is that the lessee must pay a certain
amount of money to the lessor. If the lessee does not exercise his purchase
option, then for whatever reason, the status of the lessee remains as a lessee
until the lease agreement ends.
The
parties involved in leasing business activities are:
a. Lessor,
which is a company or manufacturer as a party that provides or sells capital
goods needed by the lessee. In a finance lease, the lessee aims to obtain
financing in the form of goods or equipment by means of installment payments or
periodic payments. As for the operating lease, the lessee aims to meet the
labor needs of the equipment in addition to the operator and maintenance of the
equipment without risking the lessee to damage.
b. Lessee
is a company or party that obtains financing in the form of capital goods from
the lessor.
c. Suppliers,
namely companies that procure or provide goods for sale to the lessee with
payment in cash by the lessor. In a finance lease, the supplier lessee directly
delivers the goods to the lessee without going through the lessor as the party
providing the financing. As for the operating lease, the supplier sells the
goods directly to the lessor with payment according to the agreement of both
parties, either in cash or periodically.
d. Creditors
are usually banks that play an important role in providing funds to lessors.
Creditors or banks can also provide credit to suppliers for the purchase of
capital goods which will then be sold as leased objects to the lessee or
lessor.
3.
Types
of Leasing
Actually
there are various forms of leasing. However, as regulated in Presidential
Decree 9/2009 jo. Minister of Finance Decree 1169/1991
and judging from the transaction technique between the lessor and the lessee,
in principle, leases can be divided into 2 types, namely finance leases and
operating leases, which are explained in the next paragraph below.
Finance
leases, often also called full pay out leases or capital leases, are a type of
lease that is more often applied in practice by finance companies. In this type
of finance lease, the lessee contacts the lessor to select, order, inspect, and
maintain the required capital goods. During the lease term, the lessee pays the
rent periodically from the total amount plus the payment of the residual value.
Based
on Article 11 of the Minister of Finance 1169/1991, if the lessee chooses to
purchase the leasing object, the lessee is obliged to pay the payment of the
remaining value of the leased capital goods. However, if the lessee chooses to
extend the term of the agreement, the salvage value of the leased capital goods
is used as the basis for determining the lease receivables. At the end of the
contract, the lessee can exercise the option that has been agreed upon at the
beginning of the lease term. The option is that the lessee can choose to buy
the leasing object or extend the term of the lease agreement, or return the
leasing object.
The
characteristics of a finance lease according to (Fuadi, 2021) are:
a. Leased
objects or capital goods owned by the lessor can be in the form of movable or
immovable objects and have a maximum age equal to the economic useful life of
the goods.
b. The
lessee is obliged to make payments to the lessor periodically in accordance
with the agreed amount and time period.
c. The
lessor cannot unilaterally cancel the contract or terminate the contract period
with the agreed term of the agreement.
d. The
lessee at the end of the contract period has the right/purchase option to
purchase the leased object according to the residual value.
An
operating lease, also known as a service lease, is a type of lease in which the
lessor only provides capital goods to be rented by the lessee with no option
rights at the end of the contract period. The calculation of the amount of rent
in installments that must be paid by the lessee does not include the total
costs incurred by the lessor to obtain the capital goods.
4.
Fiduciary Guarantee in Leasing Business Activities
Fiduciary
is an institution originating from the western civil law system whose existence
and development is always associated with the civil law system. The term civil
law comes from the Latin word "ius civile", which was applied to Roman society. In
addition to ius civile,
there is also a law that regulates Roman citizens with foreigners known as
"ius gentium" (Kamelo, 2014).
In
his book, (Kansil, 1992) explains that the
Indonesian legal system has a close relationship with Dutch law because of
historical links based on the principle of concordance (concordantie
beginsel), as well as the Dutch legal system which
has historical links with French law derived from Roman law. In the 6th century
Roman law was collected and codified by order of Emperor Justinian in a law
book called Corpus Iuris Civilis.
With the expansion of the Roman empire into Western
Europe, Roman law also became widely applicable.
Fiduciary
as a guarantee institution has long been known in Roman society, which
initially grew and lived in habit. Based on historical links, fiduciary
guarantee institutions are further regulated in jurisprudence and have now
received recognition in law.
The
Romans recognized two forms of fiduciary, namely fiduciary cum creditore and fiduciary cum amico.
Both arise from an agreement called pactum fiduciae which is then followed by the transfer of rights
or in iure cessio. In
fiduciary cum creditore, a debtor submits an item in
the possession of the creditor, the creditor as the owner has an obligation to
return the ownership of the item to the debtor if the debtor has fulfilled his
obligations to the creditor. Fiduciary cum creditore
was born in Rome because of the pressing need of Roman society for collateral
law, but at that time it was not regulated in written law.
From
the word "cum creditore" we can already
guess that the handover is not intended to actually constitute a transfer of
ownership, but only as collateral - - not to be owned by creditors - - and
indeed, according to the institution, the creditor does not have full authority
as that of the creditor. an owner. After the debtor
has fulfilled his obligations, the creditor is obliged to return it to the
ownership of the debtor. Because the debtor acts with the belief that the
creditor - - after the debtor has paid off his obligations - - will not break
his promise by still having the collateral object (and considers himself to be
the full legal owner), then such a relationship is called a relationship based
on fides or fiduciary relationships (Satrio, 2007).
At
that time this fiduciary institution was born before the pawn and mortgage
institutions, because the community needed it. However, because the legal
construction used is the transfer of property rights from the debtor to the
creditor, the debtor must believe that the creditor will not abuse his
authority as the owner of the goods. The debtor's trust only has moral strength
and not legal power so that the position of the debtor is very weak and if the
creditor does not want to return the ownership rights to the goods submitted by
the debtor as collateral, the debtor cannot do anything, this
is where the weakness of the fiduciary in its initial form lies.
The
weakness of fiduciary cum creditore, which does not
guarantee a balanced position between debtors and creditors, resulted in when pand and mortgage developed as material security rights,
the fiduciary was forced until it disappeared completely from Roman law.
The
emergence of the pand guarantee institution, whose
collateral object is movable property and requires that the collateral be
physically handed over by the debtor to the creditor (inbezitstelling
condition), and the mortgage guarantee institution, whose object is a fixed
object (land), replacing the fiduciary position because the two institutions
considered more appropriate, namely that it has provided balanced rights
between the creditor as the recipient of the guarantee and the debtor as the
guarantor, as well as providing more legal certainty considering that both
forms of guarantee have been regulated in written law.
In
addition to fiduciary cum creditore, the Romans also
knew fiduciary cum amico. Fiduciary cum amico occurs when a person surrenders his authority to
another party or hands over an item to another person to be taken care of (Tiong, 1984). Fred B.G. Tumbuan
explains that:
�Fiduciary
cum amico is a trust institution known in Roman law.
This institution was often used by a priest familias
who had to leave his family and land for a long period of time because he had
to make a long journey or travel to war. In this case, the familias
will entrust his familia, namely his family and all
of his wealth to a friend who will then take care of his land and wealth and
provide guidance and protection to the family left behind by the familias. Of course, between Fr Familias
and his friend a promise was made that the friend would return ownership of the
familia when Fr Familias
had returned from his trip (Kamello & SH, 2022).�
As
described above, it can be said that Fiduciary cum amico
is a relationship that is not intended for the purpose of guaranteeing debt.
The relationship between the giver and the recipient is property management.
The recipient of the property exercises authority in accordance with the
interests of the giver of the property. According to O.K. Brahn
(Kamello & SH, 2022), fiduciary cum amico is a fiduciary concept in American Anglo Saxon law
known as trust. Fiduciary, thus in the following discussion is a fiduciary
whose meaning and purpose is as a guarantee of debt or fiduciary cum creditore in Roman law.
The
disappearance of the fiduciary after the existence of the pand
and mortgage institutions, resulted in the fiduciary not participating in the
reception when Roman law was accepted by Dutch law, but only accepting two
types of guarantee institutions, namely pand and
mortgage. Therefore, the Dutch Burgerlijk Wetboek (BW) does not contain a fiduciary regulation, as
well as the Indonesian BW, which according to the principle of concordance is
adapted to the Dutch BW, does not recognize fiduciary duties, but knows pands and mortgages.
In
Indonesia, this fiduciary practice also occurs because the Pand
(pawning) institution is considered to be less able to meet the legal needs of
the community as felt by the Dutch community. The first case in Indonesia
regarding fiduciary guarantees was the case of Bataafsche
Petroleum Maatschaappij v. Pedro Clignett
who was dumped on 18 August 1932 by Hooggerechtschof
(Hgh). The birth of this
decision laid the first basis for jurisprudence that was influenced by Bierbrouwerij Arrest in the Netherlands so that this
decision was the initial milestone for the birth of fiduciary in Indonesia and
was the first jurisprudence as a way out to overcome problems in guaranteeing a
pledge as regulated in Article 1152 BW.
From
history, it can be concluded that the fiduciary institution is an example of
the invention of the judge (rechtersrecht) which is
called the extension (uitbouw) of the pawn law (pandrecht), which was born because there was an imbalance
between the needs of the community and the development of the guarantee law.
5.
Fiduciary
Guarantee Principles
According
to experts A. Hamzah and Senjun
Manulang (1991) have their own understanding of
Fiduciary, namely "Agreement is an agreement in which two or more parties
bind themselves to carry out something in the field of wealth.". Fiduciary has the following principles:
a. The
principle of specialization on fixed loans, the object of fiduciary guarantees
becomes collateral for debt repayment, so there must be clarity regarding the
amount of debtor debt.
b. Accessor,
a follow-up agreement from the main agreement, namely a debt agreement or
credit agreement.
c. The
principle of preference rights, there is a position of rights that is carried
out on creditors against debtors, in essence, these rights take precedence if
the debtor is in bankruptcy or in default.
d. The
one who gives the fiduciary must be the owner of the object (object of
guarantee).
e. It
is allowed to give to more than one recipient or a fiduciary representative.
f. There
is a prohibition for re-fiduciary of the object of fiduciary guarantee, if it
has been registered.
g. The
principle of the droit suite, fiduciary guarantees must follow objects that are
objects of fiduciary guarantees wherever these objects are located, but there
are exceptions if the transfer of rights to receivables and inventory objects.
The
conditions that are met for the transfer of fiduciary rights are: 1) Making a zakelijk agreement, 2) There is a point for a transfer of
rights, 3) The authority to control the object from the person who handed over
the object, and 4) In the submission by way of Constitutum
Prossessorium for the object. Tangible move. Article
27 of the Fiduciary Guarantee Law contains provisions, namely:
a. Fiduciary
recipients have priority rights over other creditors.
b. The
priority right as referred to in paragraph (1) is the right of the Fiduciary
Beneficiary to take the settlement of his receivables on the results of the
execution of the object that is the object of the Fiduciary Guarantee.
c. The
priority rights of the Fiduciary Recipient are not nullified due to the
bankruptcy and or liquidation of the Fiduciary Giver.
Like
other material guarantees, fiduciary guarantees are born from the realization
of a debt agreement followed by a fiduciary agreement. The nature of the
fiduciary guarantee agreement is accesoir or
additional because the principal is in the loan agreement. Based on its form,
fiduciary agreements are generally in written form, not infrequently even
stated in a notarial deed with the aim of providing legal certainty and
protection for creditors (Triargono, 2017).
6.
Ownership
as a fiduciary guarantee institution principle
The
term fiduciary comes from the Dutch language, namely fiducie,
while in English it is called fiduciary transfer of ownership, which means
trust. In various literatures, fiduciary is commonly referred to as FEO, namely
the transfer of property rights based on trust (Prajitno, 2011). The word
'fiduciary' comes from Latin. The word is a noun which means trust in someone
or something, great hope. In addition, there is the word "fido" which is a verb which means to trust someone or
something.
According
to (R Subekti, 2021) argues: "That in
fiduciary the word 'fides' means trust, the debtor believes that the debtor has
the goods only for collateral", and in another book, Prof. Subekti also explained the meaning of the word "fiduciair", namely: "Fiduciair
is a trust given reciprocally by one party to another, that what comes out is
seen as a transfer of property, in fact (internal, internal) is only a
guarantee for a debt.
According
to (Kamello & SH, 2022), fiduciary is a term
derived from Roman law, which has two meanings, namely as a noun and an
adjective. As a noun, the term fiduciary means someone who is given the mandate
to take care of the interests of third parties in good faith, full of accuracy,
being careful and frank. People who are entrusted with the obligation to
perform actions for the benefit of others. As an adjective, the term fiduciary
shows an understanding of matters relating to trust.
In
fiduciary, there are legal subjects and objects of fiduciary guarantee
institutions. The parties who are fiduciary subjects are fiduciary givers or
debtors and fiduciary recipients or creditors. The meaning of each party
according to UUJF is as follows:
Article
1 section 5
Fiduciary
Giver is an individual or corporation that owns the object that is the object
of the Fiduciary Guarantee.
Article
1 section 6
Fiduciary
Recipients are individuals or corporations who have receivables whose payments
are guaranteed by Fiduciary Guarantees.
Meanwhile,
the objects of fiduciary law according to Law 42/1999 are as follows:
a. Movable
objects, both tangible and intangible;
b. Immovable
objects that cannot be encumbered with mortgage or mortgage rights, namely
buildings on land owned by other people, for example flats, apartments.
The
definition of object as a fiduciary object here is everything that can be owned
and transferred, both tangible and intangible, registered or unregistered,
movable or immovable which cannot be encumbered with mortgage rights.
From
the legal provisions above, it can be said that the basic principle of the
notion of fiduciary here is more emphasized on two things, namely
"transfer of ownership rights" and "control of the object as
collateral remains with the owner of the object".
Fiduciary
guarantees are identical with the control of collateral objects that remain
with the debtor or called constitutum possessorium and this character is the basis for the
difference between fiduciary and pawn. In this case, the question as well as a
discussion that is quite important is the concept of transferring ownership rights
to a collateral object where the object is still in the power of the fiduciary
debtor.
The
definition of ownership of objects that are the object of fiduciary guarantees
in the law of guarantees includes ownership rights to objects and ownership
rights to objects. According to the fiduciary theory, the fiduciary giver
trusts his property rights as collateral for the debt to the fiduciary
recipient. The transfer of property rights is not perfect as the transfer of
property rights in the sale and purchase agreement as regulated in Article 1459
BW (BW), which states that the transfer of property rights occurs when there is
delivery of goods or levering according to articles 612, 613 and 616 BW (BW).
Meanwhile, in a fiduciary guarantee, the surrender of ownership rights to an
object by trust is more focused on the juridical surrender that has occurred,
but is limited to debt guarantees only.
UUJF
stipulates that the creditor's status is limited to the owner of the collateral
object. This means that the fiduciary recipient or creditor has not been able
to fully become the owner of the object. According to the engagement theory,
the fiduciary recipient can fully become the owner of the collateral object if
it meets the formidable requirements as stated in Article 1263 BW which reads:
An
engagement with deferred terms is an engagement that depends on an event that
is still to come and will not necessarily occur, or which depends on something
that has already happened but it is not known by both parties. In the first
case, the engagement cannot be executed before the event occurs; in the second
case, the engagement is effective from the moment it occurs.
In
this case, the transfer of ownership rights to the object can be fully
transferred if the fiduciary giver is in default. However, based on Article 19
paragraph (2) of Law 42/1999, the transfer of rights is legal as long as the
fiduciary guarantee agreement has been registered with the Fiduciary
Registration Office. The birth of ownership of fiduciary collateral for
creditors receiving fiduciary is at the time of registration at the fiduciary
registration office. Then if the debtor defaults, then the juridical rights
over the collateral in full are transferred to the fiduciary recipient
creditor.
Because
the fiduciary guarantee agreement is an accessor of the debt agreement and the
debtor is the debtor, the collateral used as the fiduciary object is in the
form of objects that actually belong to the debtor. When the object is
fiduciary and at the time the fiduciary agreement takes place, the ownership of
the object is half the property of the debtor and half of the creditor. It is
said that way because prior to the default by the debtor, the creditor's
position was not yet fully the owner of the object, only limited to being the
owner of the collateral, so the debtor still had rights to the object, even
though it was limited. From the description above, it can be concluded that the
legal principles of FEO that were born from jurisprudence have been stated in
the form of Law 42/1999, namely specifically regarding the concept of ownership
of fiduciary objects.
7.
Forms
of Legal Protection for Financing Companies as Lessors in Leasing Agreements
The
Constitutional Court's Decision Number 18/PUU-XVII/2019 in the end greatly
affected the position of the financing company (creditor) as a lessor and
fiduciary recipient, but the Constitutional Court's Decision Number
18/PUU-XVII/2019 is final and binding, therefore a form of protection for the
According to the author, the post-MK financing company is returning to the
dignity and the actual form of the leasing agreement itself.
The
author has described in CHAPTER I previously, that in
the community there has been a misunderstanding (misunderstanding) related to
leasing/leasing. The concept of leasing or leasing is a lease. In a leasing
relationship between the lessor and the lessee, the legal owner of the object
of the lease is the party who rents out, not the lessee. The position of the
tenant here is only to have the right to control the object of the lease and
enjoy the results of the use of the object of the lease with limitations as
agreed with the party who rents out in a lease agreement. The theoretical
principle of ownership of the leased object in the lease agreement also applies
to the leasing agreement. Ownership of capital goods as a rental object in a
leasing agreement is legally owned by the lessor. The lessee only controls the
goods to be used for its usefulness to support the smooth running of its
business. This is explicitly regulated in Article 3 paragraph (3) of the
Minister of Finance Regulation 84/2006 concerning Financing Companies, which
reads as follows: �As long as the Lease Agreement is still valid, the ownership
rights to the capital goods of the object of the Lease transaction are with the
Financing Company�.
The
description above shows that the juridical ownership of the leasing object
remains with the lessor, so there is no need to be charged with a fiduciary
guarantee, because in a fiduciary guarantee, the legal ownership rights remain
with the fiduciary giver. The transfer of ownership rights is not a legal
transfer of ownership, so the fiduciary recipient (creditor) is not legally
allowed to take any legal action on the goods whose ownership rights have been
transferred by the fiduciary giver to the fiduciary recipient. Therefore, this
fiduciary guarantee agreement is an accessor of the debt agreement and the
debtor is the debtor, so the collateral used as the fiduciary object is in the
form of objects that do belong to the debtor, so it is not appropriate if the
fiduciary guarantee is applied to the leasing object.
A
finance company should implement a leasing agreement, where in the leasing
agreement itself a clause is clarified regarding when the debtor is declared in
default and a voluntary surrender clause is added along with the stages of
delivery. This leasing agreement needs to be read out thoroughly and in detail
to the parties, or if necessary, the leasing agreement can be signed before a
notary, to reduce the risk that the debtor will later state that he agrees in a
forced state and does not understand the contents of the agreement.
The
leasing agreement also needs to apply related to a dispute settlement clause,
when a problem between a creditor and a debtor can be resolved through a court
institution, meaning that if there is a problem between a creditor and a
debtor, then what must be taken first is mediation (non-litigation) or
prioritizing a non-litigation settlement. -litigation, after non-litigation
fails, then dispute resolution through the court is allowed.
Then it is necessary
to make a special attachment in the leasing agreement related to the
procedures/procedures of the delivery and/or withdrawal of the leasing object
if the debtor defaults. This clause must reflect the values of
humanity and justice in its implementation, in order to avoid ways of
withdrawing physical and psychological violence, for example by giving advance
notice to the debtor, and when the withdrawal is carried out in a reasonable
manner witnessed by the head of the neighborhood and the police to avoid
commotion.
CONCLUSION
The form of protection for finance companies
after the Constitutional Court Decision Number 18/PUU-XVII/2019 is to return to
the dignity and form of the leasing agreement itself, without the imposition of
a fiduciary guarantee. In the leasing agreement itself, a clause is clarified
regarding when the debtor is declared to be in breach of the promise and a
voluntary surrender clause is added along with the stages of delivery. This
leasing agreement needs to be read out thoroughly and in detail to the parties,
or if it is necessary, the leasing agreement is made in the form of a notarial
deed, then the addition of a dispute resolution clause and the inclusion of a
special attachment in the leasing agreement related to the
procedures/procedures of the delivery and/or withdrawal of the leasing object
if the debtor defaults.
This research has implications for economic
activities in the community, specifically for leasing business activities,
namely finance companies as lessors, no longer need to apply fiduciary
guarantees to leasing objects, because the ownership of the leasing object
remains with the lessor. The finance company needs to review the lease
agreement it has, by adding several clauses as a guarantee of protection to
both the lessor and the lessee.
The government through the Financial Services
Authority and other law enforcement officers is more strict and careful in
carrying out supervision and enforcement of sanctions against financial
institutions that carry out arbitrary actions (physical and psychological
violence) against the withdrawal of leasing/fiduciary objects.
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