Legal Values Contained in Society as Exit Emergencies in the Deciding Ratio Process that Produces Judge Made Law in Bankruptcy Law

Abstract

Bankruptcy law in Indonesia has special characteristics compared to other fields of law. Article 2 Paragraph (1) is the basis for the bankruptcy decision, and the decision is an immediate decision (uitvoorraad bij voorraad). So that when a bankruptcy decision occurs, the curator supervised by the supervisory judge immediately executes the bankruptcy estate for management and/or settlement of the bankruptcy estate. The simple requirements of Article 2 Paragraph (1) apply to debtors who are solvent or not. If the debtor is no longer solvent, the bankruptcy law can be applied as a solution by the debtor and creditor. However, if the solvent debtor, namely the assets of the company/individual, is much larger than the debt, other problems will arise. Due to the fact that, the bankruptcy law in Indonesia is not required for a solvency test before the application, therefore it will be very detrimental to the debtor and creditors, because the bankruptcy requirements are very simple, and the bankruptcy law appears to be scary for the solvent debtors.Debtors' fear of the application of bankruptcy law should not occur if they interpret Article 8 Paragraph (6) letter a which states “The court decision as referred to in Paragraph (5) must also contain;  a. certain articles of the relevant laws and regulations and/or unwritten sources of law used as the basis for adjudicating…”.  With the enactment of Article 8 Paragraph (6) letter a opens  an opportunity for solvent debtors to avoid bankruptcy. Article 8 Paragraph (6) can be used as an emergency exit for a judge made law process. Therefore, the researcher analyzes the values of justice in society as an emergency exit in the process of judge made law, if the debtor is still solvent. The problems raised in this study are: how do judges in their legal considerations (ratio decidendi) make judge made law as an emergency exit for  debtor.This research belongs to a normative legal research. The researcher applies some theories, namely the theory of legal objectives that originate from the three general teachings of Gustav Radbruch and the theory of the legal system of Kees Schuit. The approaches used are the conceptual approach, the historical approach, the statutory approach, the comparative law approach and the case approach. This research is expected to have prescriptive value for the legal world in the future, especially bankruptcy law.

DOI: 10.7176/JLPG/81-01

Publication date: November 30^th 2022