The Authority of District Court in Providing Decision of Mortgage Execution

Abstract

The arrangement of mortgage execution through Parate Executie in the Mortgage Act aims to provide convenience to creditors in the fulfillment of their receivables when the debtor is defaulted, i.e. the creditor can sell the object of mortgage right on his own power without having to go through the judiciary. However, the ease with which the creditors are in fact cannot be utilized due to differences in the interpretation of the regulation on execution parate in the Mortgage Act (Law No. 4 of 1996), the difference is increasingly tapered by the decision of the Supreme Court of the Republic of Indonesia Number 3210/K/Pdt/1984 which eliminates Bandung High Court Decision related to the case of Auction of Mortgage Objects through the absence of fiat from the Chairman of local District Court which also becomes a jurisprudence in the execution of mortgage objects.

Based on this background, then the issues of discussion are about (1) what is the ratio decidendi of the Decree of MARI Number 3210/K/Pdt/1984 dated on 30 January 1986 which becomes the jurisprudence in the implementation of parate executie? (2) what are the legal implications that may arise from the mortgage execution through parate executie with the availability of fiat courts, (3) how to arrange mortgage execution through the parate executie in the near future? Beginning from the problems, they are further analyzed deeply by undertaking legal research. The approach used is legislation approach, concept approach, and both history and case approaches. The results of the research indicate that the ratio decidendi of the Decision of MARI Number 3210/K/Pdt/1984 dated on 30 January 1986 which becomes the jurisprudence in the execution of parate executie is the procedure of mortgage execution as the basis of mortgage execution. This does not mean that the procedure of this mortgage execution could be applied to all mortgage executions, including execution under Article 6 of Liability Law. This applies specifically for execution on execution title contained in the Certificate of Mortgage as referred to in Article 14 paragraph (2) of Liability Law. Legal implications may arise from the execution of mortality rights through parate execution with fiat courts if it does not undergo through the District Court and the debtor is not willing to empty the object of auction. Thus, the Head of District Court is not justified to execute the emptying and to declare execution parate directly to the office Auction without going through the fiat of the Head of the District Court. This is considered an unlawful act. The opinion of judges in this matter raises the legal uncertainty so that the author gives an alternative concept related to the arrangement of mortgage execution through parate executie. In the future, this Circular Letter of the Supreme Court must be declared null and void as opposed to the Mortgage Act based on the principle of lex superiori derogat lex inferiori. Besides, to provide protection for the parties, especially the debtor, creditor and third party (winning bidder), it is necessary to make a regulation concerning the law of a fair and lawful auction.

Keywords: Mortgage, Mortgage Act, Liability Law