Year: 2025
Type: article
Abstract: Introduction: The forms of collateral in Burgerlijk Wetboek (pawn and mortgages) are apparently less able to facilitate the needs of Micro, Small, Medium Enterpreneurs (MSMEs) who need capital but also still need to utilize the collateral objects. Fiduciary was created to accommodate the needs of the community to be able to obtain additional funds while still controlling collateral objects. These objects are still used in managing business activities and increase the chances of success of debt repayment so that this method is considered to be equally beneficial for debtors and creditors. The research that applies the normative juridical method will examine in depth about how the legal standing of fiduciary debtors and their correlation with the status of property rights, property rights, material security rights and rights and obligations of both the debtor and creditor, their existence in The Fiduciary Act (TFA) and their compatibility with this era. Objective: The objective of this study is to investigate [insert specific research topic here], with the aim of [briefly explain the main purpose of the research]. The purpose of this research is to analyze and find the philosophical basis for the existence of fiduciary guarantee institutions. Theoretical Framework: Agreements can be born from legal relationship of the parties regarding assets where one party promises to do something, give something or not to do something. Agreement always starts with a process of negotiation between parties. People are bound to their own promises, the promise is binding and that promise must be fulfilled (Satrio, 1995). Agreement should be distinguished from a promise, even though promise is difference with agreement, promise must not have legal consequences, so that if it was broken then there was no legal consequence or sanctions (Mertokusumo, 1999). These defaults can be filed in court (Guest, 1979). Agreement as a bond implied in Article 1313 BW but the explanation is incomplete because it only refers to one-sided agreement. The formulation of this article was considering over extensive because phrase "a legal act" can include zaakwaarneming and onrechtmatigedaad. In order to fix the ambiguity, Article 6.213.I NBW states that : “A contract in this sense of this title is a multilateral juridical act whereby one or more parties assume an obligation toward one or more other parties” (Hartkamp, Tillema, 1995). The most important particularity of the contract is the mutual agreement of the parties. This collective agreement must be disclosed to the opposing party in the contract. It is worth remembering that without interdependence there is no agreement, for example in the General Meeting of Shareholders (GMC) regarding the selection of the company's board of directors, this election was chosen with general agreement so that it is not a contract because there is no element of mutual consent and interdependence. The intention of the parties to the contract must aim to create legal consequences. There are many agreements that give rise to social obligations or moral obligations, but have no legal consequences. For example, promises to go to the cinema do not cause legal consequences. In the common law system, all contracts are agreements, but not all agreements are contracts (Woon, 1995). American Restatement of Contract (second) defines contract as a promise or set of promises which the law give a remedy in some way recognized as a duty (Anderson, 1987). In the 2nd American Restatement of Contract there is no bargaining element in that definition. A contract is simply considered a series of promises. In fact, there are also some cases where a promise is treated as contractual thought without real agreement. Pollock tries to summarize and simplify by defining contracts as a promises enforced by law (Atiyah, 1981). There are several types of agreements and credit agreement is only one of them. The word credit comes from the Roman "Credere" meaning “to believe”. It was regulated in Act No. 10 of 1998. The term "guarantee" comes from the translation of Zakerheidessteling. Guarantee according to J. Satrio is a legal regulation governing collateral receivables of a creditor to the debtor (Satrio, 1995). Method: The research method used in this study is normative juridical with the concept approach and legislation approach. The concept approach is carried out by analyzing problems using applicable legal principles, theories and doctrines from legal experts. The legislative approach is carried out by analyzing problems using regulations relating to fiduciary issues, especially Act No. 42 of 1999 on Fiduciary (TFA) also its implementing regulations. Results and Discussion: The results obtained revealed [synthesize the main results of the research]. In the discussion section, these results are contextualized in light of the theoretical framework, highlighting the implications and relationships identified. Possible discrepancies and limitations of the study are also considered in this section. The issuance of TFA is an official acknowledgment from government about the existence of fiduciary subject. TFA clearly states that fiduciary are collateral for the material which gives priority to the recipient where the precedent rights do not nullify the bankruptcy of the fiduciary guarantee. A fiduciary guarantee is an accessor agreement, therefore the fiduciary guarantee is null and void by law if the debt guaranteed by the fiduciary is written off. The debt is not limited to the definition of debt, but this debt also includes any verbintenis referred to Article 1234 BW. The form of the fiduciary agreement must be written in a notarial deed in Indonesian according to 1870 BW. This regulation can support the implementation in practice. Fiduciary guarantees born on the date of fiduciary guarantee are recorded in the Fiduciary Guarantee Certificate which is issued on the same date as the date of receipt of the application for registration of fiduciary. Considering that the debtor retains possession of the object and gains economic benefits from it, then he is responsible for all consequences and must bear all risks. Research Implications: Regarding the issue of legal authority in TFA, it needs to be revised through the ambiguity between Article 1 number 1 and Article 1 number 2 of the UUJF. It must be clarified again because it relates to the principle of the handover of objects and the principle of fiduciary security which is very important things in fiduciary agreement. Originality/Value: This study contributes to the literature by [highlighting the originality of the research, whether through the innovative approach, new discoveries or practical contributions]. The relevance and value of this research are evidenced by [explain how the results may impact the area of study or professional practice]. This research is different from previous research. First, the research of A.A. Andi Prajitno entitled "Fiduciary Law: Legal Problems of the Implementation of Law Number 42 of 1999". The problems include: (1) How are the Problems of the Implementation of Law Number 42 of 1999 in the positive legal system? (2) How is the normative system applied to Law Number 42 of 1999 concerning fiduciary guarantees? (3) How is the guarantee of legal certainty for creditors receiving fiduciary obligations when a default occurs. Second, Celina Tri Siwi Kristiyani's research entitled "Fiduciary Guarantee Law in the Material Guarantee System". The problems include: (1) How is the legal certainty of fiduciary guarantees in the material guarantee system. (2) How is the integration of the legal principles of fiduciary guarantees with the principles in the material guarantee system. Third, Sri Ahyani's research entitled: "The Binding Power of the Burden of Fiduciary Guarantee Objects That Are Not Made by a Notarial Deed Connected to Law Number 42 of 1999 Concerning Fiduciary Guarantees in the Context of Realizing Legal Certainty. The problems include: (1) How is the binding power of the burden of fiduciary guarantee objects that are not made by a notarial deed of fiduciary guarantees against changes in fiduciary guarantee objects connected to Law Number 42 of 1999 concerning Fiduciary Guarantees. (2) How is the legal protection of the position of creditors and debtors in the burden of fiduciary guarantee objects that are not made by a notarial deed connected to legal certainty. Fourth, Soegianto's research entitled: "Reconstruction of Fiduciary Agreements for Registered Movable Assets Based on Fair Value". The problems include: (1) What is the form of reconstruction of fiduciary agreements for movable assets. (2) How to execute fiduciary collateral objects. Fifth, Lina Jamilah's dissertation research entitled: "Reconstruction of Law Number 42 of 1999 Concerning Fiduciary Guarantees Based on Classification of Objects in Indonesia". The problem is, how to classify fiduciary collateral objects based on classification of objects in Indonesia. The similarity of each dissertation research as previously stated is that all of them research related to the Fiduciary Guarantee Law. In this research entitled: "The Nature of the Legal Position of Debtors During Control of Fiduciary Guarantee Objects". The difference with previous researchers is related to the legal position of debtors during control of fiduciary guarantee objects. Therefore, this research is original.
Authors: Dwi Tatak Subagiyo, Hari Wibisono
Institution: Universitas Wijaya Kusuma Surabaya
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W4410138381