Fiduciary Collateral Object Execution Mechanism Post Constitutional Court Decision Number 2/PUU-XIX/2021

Abstract

Fiduciary guarantees have existed in society since the Dutch colonial era because of the flexibility of objects that can be burdened with fiduciary guarantees, the more there is a need for legal certainty over fiduciary guarantees. The Fiduciary Guarantee Act (UUJF) requires registration of the imposition of fiduciary guarantees. Registration is carried out at the Fiduciary Registration Office with a working area covering the entire territory of the Republic of Indonesia and is within the scope of duties of the Ministry of Law and Human Rights to obtain a fiduciary guarantee certificate. The fiduciary guarantee certificate contains the head of the decision which is interpreted as having the power of execution, so that the execution can be carried out immediately without going through a court and is final as described in Article 15 paragraph (2). In practice, this article often becomes a polemic in the community, causing acts against the law and even criminal acts when the fiduciary recipient wants to execute the fiduciary guarantee. After the Decision of the Constitutional Court Number 2/PUU-XIX/2021, in its decision, it redefines Article 15 paragraph (2) and paragraph (3) of the UUJF. This decision is an explanation and confirmation of the previous Constitutional Court Decision Number 18 /PUU-XVII/2019. This study will discuss the power of administering fiduciary guarantees after the Constitutional Court Decision Number 2/PUU-XIX/2021. With the research method using a statutory (normative) approach, as well as a conceptual approach, it is concluded that the execution clause in the fiduciary guarantee certificate does not change, only as a legal consequence arising from the decision of the Constitutional Court number 2/PUU-XIX/2021, namely the mechanism for implementing the guarantee certificate execution. Fiduciary is carried out by equating it with the mechanism for implementing the execution of a court decision that has permanent legal force (incracht), if the guarantor does not voluntarily surrender the object of the fiduciary guarantee under his control. In addition, there must be an agreement between the parties regarding the default. And in the Decision of the Constitutional Court Number 2/PUU-XIX/2021 as an explanation and confirming the multiple interpretations in the public of the previous Constitutional Court decision, that the execution of a fiduciary guarantee certificate through a court decision is an alternative that can be taken in the event that there is no agreement between the creditor and the the debtor, both in relation to default and the voluntary surrender of the object of guarantee from the debtor to the creditor. The default clause must be specified in the principal agreement or in the fiduciary guarantee certificate.