The Meaning of Default in the Execution of the Object of Fiduciary Security Based on Law Number 42 of 1999 Concerning Fiduciary Guarantees

Abstract

The Constitutional Court's Decision Number 18/PUU/XVII/2019) brings new changes to the procedure for implementing the execution of the guarantee object. The fiduciary recipient or creditor can no longer execute the object of the guarantee unilaterally, forcibly using the services of a third party to withdraw the object of the guarantee from the hands of the debtor or fiduciary giver who is in breach of contract. This research is classified as normative legal research, namely research that examines the legislation in a coherent legal system. Based on the decision of the Constitutional Court, Article 15 Paragraph (2) and Paragraph (3) are declared still valid and have legal force, the meaning of these articles is limited by the execution in the field, namely: Has there been an agreement on breach of contract (default) between the parties? Does the debtor have no objection to voluntarily surrendering the object as a fiduciary guarantee? Even though the fiduciary guarantee certificate has an executive title which means that it can be implemented as a court decision that has permanent legal force, the procedure or procedures for the execution of the fiduciary certificate must follow the procedures for carrying out the execution as referred to in Article 196 HIR or Article 208 RBg..

Keywords: execution, guarantee, fiduciary

DOI: 10.7176/JLPG/81-07

Publication date: November 30^th 2022