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Stevani Komara, Habib Adjie

Edunity

Volume 2 Number 5, May 2023

p- ISSN 2963-3648 | e-ISSN 2964-8653

Doi:

https://edunity.publikasikupublisher.com/index.php/Edunity/index

THE EFFECT OF THE EXECUTION OF THE SALE OF THE

RIGHT OBJECT ON THE POSITION OF BANK CREDITORS

Stevani Komara

, Habib Adjie

Faculty of Law, Narotama University, Surabaya, Indonesian

1,2

Email: [email protected]

ABSTRACT

The results of this study show that the right of liability is the object of guarantee that s most in

demand by creditors (banks) as debt collateral. The value of the rights contained in the

certificate rights of dependents has an important influence in determining the position of

creditors as creditors who have preferential rights or are only limited to as a concurrent

creditors. If the value of the dependent rights has greater value than the debtor’s debt, then

the creditor's position as the holder of the liability right is the preferred creditor, which takes

precedence over repayment of it over other creditors. However, the determination of the

creditor’s position as a preferred creditor or not can also be viewed from the proceeds of the

sale of the object of liability from the results of auction execution. If the selling price of the

object of liability is reader than e debtor's debt, the creditor has the right to take precedence

over full repayment by taking the proceeds Net sales are only limited to debtors. Meanwhile,

if the proceeds from the sale of the object of liability are smaller than the debtor’s debt, then

the remaining debt of the debtor positions the creditor as a concurrent creditor meaning that

the repayment of the remaining debtor is divided equally with other creditors

Keywords: Dependents; Execution Results; Position of Creditors

Introduction

The implementation of economic development both carried out by individuals and

business entities is certainly inseparable from funding. In general, funding is obtained

by borrowing from banking institutions in order to be able to carry out and meet

operational and other certificate their needs so that economic development activities

continue to run accordingly Lan (Rosana & Jogjakarta, 2019). Banking or banks are

institutions that have the main function of channeling and providing funds or capital to

individuals and companies in need (Yoyo Sudaryo et al., 2021). The provision of funds

y banks is carried out by observing the principle of prudence, one of which is by binding

the debtor(customer) with the creditor (bank) in a credit agreement if the debtor as

qualify d be accepted by the Bank as a trusted recipient of funds.

A credit agreement is an agreement between the creditor and debtor for an amount of

money that has been handed over by the creditor and the debtor must return a sum of

money along with Interest within a certain period according to mutual agreement

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(Mihardjo, 2022). A credit agreement is a basic agreement that is generally accompanied

by an additional agreement (accessor) in the form of binding guarantees (Hasan Basri,

2021). The guarantee here Is Intended to provide protection for creditors if, in the future,

debtors break promises by making credit must (Natania et al., 2020)

Material guarantees that are in great demand and considered the safest by creditors are

Hak Jaminan (Atikah, 2020). The object of the Right of Liability here is in the form of

land with properties that are easy to sell, relative prices increase from year to year, there

is evidence of ownership of the right that is difficult to fake, and gives a privileged

position to creditors, namely in terms of debt repayment takes precedence over other

creditors, hereinafter known as creditors preferred (Isnaeni, 2016). The object of liability

can also be pledged for some debtor debts if the value of the collateral object is

considered sufficient to guarantee these debts, so the term arises rank in the Right of

Dependents as regulated in Article 5 paragraphs (2) and (3) of the Law. The existence of

a rating of the dependent rights determines the precedence of repayment of creditor

receivables based on the proceeds of the sale of the dependent object (Slamet, 2017).

The execution of the rights of dependents is also easier. If the debtor has broken the

promise, then the creditor as the holder of the dependent right Is given the authority to

execute the object of the dependent righting in the form of land in order to take

precedence over the repayment of receivables either by auction or underhand as

stipulated in Article 6 and Article 20 of Law Number 4 of 1996 on Rights Dependents on

Land and Objects Related to Land (UUHT) . The provisions of Article 6 explain that: "If

debtor default, the holder Right of Liability first has right to sell the object of Right

Dependent on his own power through public auction and take repayment The

receivables from the proceeds of the sale".

To be able to execute in an easy and sure way, it is important for creditors to know,

namely registering the encumbrance of dependents first to the land office where the

object is located, then by the local land office issued Certificate Haki Defendant

consisting of the Land Book of Rights of Dependents and a copy of the Deed of

Encumbrance Rights of Dependents bound in one document (Harsono, 1999). In the

certificate, the rights of dependents are listed as the irahs "For the sake of justice based

on the One Godhead", which has the same secretory power as the judgment court as

stipulated in Pasall14 paragraphs (2) and (3) of the UUHT.

The execution of the dependent is carried out by taking into account the value of the

dependent rights and the number of receivables stated in the credit agreement and the

deed of encumbrance which is an accessory agreement In the form of binding

guarantees. In the practice of banking credit agreements, banks as creditors determine

the amount of the value of the Dependent Rights as 120% (one hundred twenty percent)

of the debtor's debt value, this amount can also change in accordance with the agreement

or internal rules of the Bank itself (Mihardjo, 2022). The determination of the value of the

dependent rights with a value greater than the debt is so that the creditor has a position

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Stevani Komara, Habib Adjie

as a preferred creditor. If the value of the dependent rights contained in the agreement

is smaller, then the creditor's preference rights cannot be attached to it, meaning that in

the event of debt repayment is generalized with other creditors as stipulated in Article

1131 and Article 1132 of the Code Civil Code. Such creditors have the position of

concurrent creditors. The determination of the value of the right of custody, when

associated with the proceeds of the sale of the object of the right of liability and the

amount of creditor receivables greatly affects the position of the creditor in terms of

repayment of receivables, whether the creditor concerned becomes a preferred or

concurrent creditor. This is important to know, as a form of legal protection for creditors

in obtaining repayment rights from debtors through the auction execution process.

Research Method

This study uses normative juridical methods in examining the problems in this article.

The second approach used is the statutory approach (statute approach) and conceptual

approach. This research uses primary data obtained through regulations legislation

especially UUHT and the Civil Code, and based on doctrine and opinions para sarjana

and secondary data collected through searching the literature. In addition, the data is

analyzed qualitatively and then presented In a descriptive method."

Result And Discussion

Credit is a term related to a bank, which contains the meaning of lending money or funds

to individuals or business entities that are trusted by being bound by an agreement

called a credit agreement. The term credit can be found in Article 1 number 11 of Law g

Number 10 of 1998 concerning amendments to Law Number 7 of 1993 concerning

Banking (hereinafter referred to as the Banking Law), which explains as follows:

"Creditis the provision of money or bills that can be likened to it, based on agreement

lending and borrowing between the bank and other parties that oblige party borrower

to pay for the debt u after a period of time certain with the giving of flowers"

Credit agreement principal agreement which obligator (pasta de contravened

obligatory) which arises because of an agreement between creditors and debtors on the

matters agreed upon and becomes the basis for the emergence of other agreements

known as additional agreements accessor agreements, namely material guarantee

agreement. The object of material security that is considered the safest by creditors, in

general, is the object of land rights, namely the Right of Dependent. The objects of land

rights that can be encumbered with dependent rights are regulated in the provisions of

Article 4 and Article 27 of the UUHT, namely: property rights, building use rights,

business use rights, Right of use, and property rights over flats.

The creditor's interest in material guarantees in the form of rights of dependents because

it has the following characteristics:

1. Precedence of repayment of creditors' receivables (droiti de preference);

2. Follow where the object of the guarantee is located (droit de suite);

3. The existence of a principle of specialty and a principle of publicity; and

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4. No bail can be placed on bail by the court;

5. The object of the right to insolvency is not included in the bankruptcy model;

6. Easy and sure execution of collateral objects.

The granting of dependent rights, which must be based on the main agreement, can be

observed in the provisions of Article 10 paragraph (1) of the UUHT which explains that:

"The granting of Dependent Rights n is preceded by a promise to give Dependent Rights

as a guarantee of repayment of certain tang, which is set forth in and is an integral part

n of the agreement debts the person concerned or any other agreement giving rise to the

debt. (HS & SH, 2021)

The right of liability as an additional agreement, explained in the general explanation of

paragraph 8 of the UUHT, namely: "Since Liability by its nature Is a follow-up or an

accessor to a receivable trecento, which Is based on one agreement debts rother

agreements, then their birth and existence are determined by the presence of receivables

guaranteed repayment....".

Credit agreements and Property Guarantee Agreements in this case are Rights of

Dependents made by deed of Land Deed Making Officer (PPAT) known as a Deed of

Encumbrance of Rights of Dependents (APHT) is a form of internal protection made by

the parties concerned from possible losses arising in the future due to non-fulfillment of

achievements (Isnaeni, 2016). The main substance contained in Article 11 paragraph (1)

of the UUHT explains the points that must be listed in the APHT, namely: "Nama and

identity of the parties, both grantors and holders of Dependent Rights; the domicile of

the parties; the amount of debt secured by the Right of Liability; determination of the

value of the Right of Dependents; and a clear description of the object of the guarantee

of the Right of Dependent".

Based on some of the things mentioned above, the thing highlighted by the author is

about determining the value of dependent rights, because one of the determinants of the

creditor's position as a preferred or concurrent creditor can be seen from the value of

receivables and the installation value of dependent rights contained in the APHT. The

value of the dependent rights here is interpreted as the amount of the burden of

dependents installed (which overrides) the collateral object with a maximum limit so as

to make the position of the creditor holding the Dependent Rights become a preferred

creditor for the results of the execution of the object of the Dependent Rights concerned

(Arba et al., 2021)

The determination of the value of the dependent rights does not have to have the same

amount as the value of the debtor's debt. However, the suggestion of the value of

dependent rights generally has a nominal amount greater than the credit value, this is a

form of anticipation of creditors from the possibility of fines or bloated interest (Satrio,

1997). These provisions can be seen in Article 3 paragraph (1) of the UUHT, namely:

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Stevani Komara, Habib Adjie

"The debt guaranteed for repayment with the Right of Liability may be in the form of

existing or agreed debt with a certain amount or an amount which at the time the

application for execution of the Right of Liability is submitted can be determined based

on a debt-receivable agreement or other agreement giving rise to the relationship

between the debts concerned"

In banking practice, the average value of the dependent rights is determined to be 120%

(one hundred twenty percent) of the debtor's debt value, but the figure is not absolute

but still preferably based on the agreement of both parties, namely creditors and debtors

(Mihardjo, 2022). The purpose of installing a value of the dependent right higher than

the debtor's debt is to determine the position of the creditor of the holder of the

dependent right as the party who takes precedence or prioritizes repayment over other

creditors. If the value of the debt is greater, the legal consequences that arise are that the

creditor holding the dependent right is equalized with other creditors or referred to as

concurrent creditors.

The right of liability can be burdened with several debtors with conditions if the value

of the collateral object has sufficient value to guarantee some of the debts concerned, so

the term appears to be ranked in the rights of dependents as regulated in Article 5

paragraphs (2) and (3) of the UUHT. Regarding the repayment of boor debts, it is

determined based on the order of the ranking of dependent rights taken from the

proceeds of the sale of dependent rights objects both carried out by auction execution

and under the hand. One of the main conditions for execution to be carried out against

the object of the insured right is if the dependent has been registered at the land office

where the object is located, as Article 13 paragraphs (4) and (5) of the Law, which

basically explains that the dependent rights are born on the date on which the land book

is made and on that date the creditor is domiciled as a creditor who takes precedence in

terms of repayment of receivables (Droit de preference). When the registration has been

completed, the local land office issues a certificate of indemnity as proof of attachment

of the dependent rights in the land and object in which are listed the girahs "For Justice

Based on the One and Only Godhead”. Based on the Explanation of Pasal 14 paragraphs

(2) and (3) UUHT explains that: "The graphs included in the certificate of Rights of

Liability and in the provisions of this paragraph, are intended to affirm the existence of

executory power on the certificate of Rights of Custody, so that if the debtor defaults, it

is ready to be executed as well as a court decision that has obtained permanent legal

force, through procedures and by using the institution of separate executie in accordance

with Civil Procedure Code regulations".

Talking the repayment of creditors whether carried out through auction execution or

underhand sales as stipulated in Article 20 of the Law, is based on the actions of debtors

who have committed a breach of promise or default. Article 1238 of the Civil Code

explains that: "The debtors declared negligent by the warrant, or by deed of that kind,

or by virtue n of the engagement itself, i.e. if this engagement result from the debtor shall

be deemed negligent by the lapse of a prescribed time". Debtors who have neglected

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their obligations by not paying debts in accordance with the agreed time provisions, then

the property in the form of land is used as an object of liability execution can be carried

out (Khoidin, 2017). Debtors who have manifestly broken promises or defaults, then the

dependent rights provide a solution by selling the guarantee keeping in mind the

provisions of Article 20 UUHT, as follows:

1. Persecution based on a promise to sell the collateral object yourself (prate executive);

2. Persecution based on the executory title on the certificate of Liability; and

3. Execution through underhand sale by agreement.

In practice, among the solutions described above, creditors prefer the execution process

through auctions. This is based on the reason for obtaining the highest price in the

process of selling the object of liability. The definition of auction can be found in the

provisions of Article 1 paragraph (1) of the Minister of Finance Regulation Number 213

/ PMK.06 / 2020 concerning Auction Implementation Guidelines, namely: "The sales

charcoal that is open to the public with quotations in writing and or orally that increases

order decreases creases to reach the highest price that Is preceded bye with the

announcement of auction".

According to M. Yahya Harahap, the auction is defined as the sale of goods in public

which is carried out with an increasing bid value, with the approval of Increasing

Increase with the registration of price, which was previously announced in advance, to

provide an opportunity for people to be present to buy by bidding prices up and down

either by invitation or because of seeing announcements (Salim & Subagyono, 2022)

The thing that can be highlighted in the process of execution of the object of liability

through public auction is the proceeds of the sale of the object. If the proceeds from the

sale of the object of liability are less than the value of the receivable, then the remaining

debtor results in the creditor being a concurrent creditor (Hutapea, 2020). This certainly

affects the repayment of receivables that must be divided equally with other creditors as

stipulated in Article 1131 and Article 1132 of the Civil Code. Such a position certainly

does not benefit creditors who hold dependent rights and who should take precedence

over repayment.

The position of creditors both as concurrent creditors and preferred creditors, can be

known from the relationship between the value of the liability, debtor debt, and the

proceeds of auction sales (Maharani, 2020), as follows:

a. Creditor is positioned as a preferred creditor by obtaining full repayment of the debt

if the value of the indemnity and the proceeds from the sale of the object of the

indemnity are greater than the amount of debt of the debtor.

b. Creditors are positioned as preferred creditors by obtaining full debt repayment

when viewed in terms of sales proceeds obtaining a selling price greater than the

value of rights dependents and the value of their receivables.

c. Creditor as a concurrent creditor, if the value of the debt is greater than the value of

the dependent rights and the proceeds of the sale.

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Stevani Komara, Habib Adjie

d. The creditor is positioned as a concurrent creditor for the remaining debt of the debtor

if the proceeds from the sale of the object of liability are less than the amount of debt

and the value of the right of the dependent.

Based on the description above, if further examining the debtor's debt, the value of the

dependent rights and the proceeds of the sale of the dependent objects through auction

have a close relationship as a determinant of the position of the creditor in case of

repayment of his receivables. Creditors are certainly prioritized and given privileges in

repaying debts in full if the value of the dependent rights and the result of the sale of the

object of the liability are greater than the debt debtor. If the opposite happens, then for

the remaining debt or debt that has not been paid, put the creditor as a concurrent

creditor (Prayoga, 2022).

For creditors who have obtained full repayment, and there is residue from the sale of the

object of liability, UUHT provides legal protection for debtors. The remaining sale of the

object of liability after the debtor is paid off, the creditor must return the remaining

money to the debtor as his right (Maurizkha, 2022). This has been regulated in Article 6

of the UUHT which explains that: "if the debtor defaults, the holder of the first g of the

Dependent Rights has the right to sell the object of the Dependent Rights on his own

power through a public auction and take repayment of his receivables from the proceeds

of the sale".

In the Substance of the above article, there is the phrase "...... take repayment of

receivables from the proceeds of the sale", which s then explained in the Explanation to

Article 6 of the UUHT as follows: “… The holder of the Right to Cover has the right to

set sell object Right of Liability through public auction without requiring further

approval from the grantor of the Right of Liability and then take repayment of the

receivables from the proceeds of the sale earlier than other creditors. The remaining

proceeds of the sale remain the rights of the grantor".

Based on the explanation above, it can be said that the creditor has the right to execute

the object of the dependent right if the debtor breaks the promise or defaults by taking

from the proceeds of the sale of collateral objects, with a note only limited to the amount

of the debtor's debt, and the rest remains the right of the debtor (Leo, 2016).

Conclusion

The value of the dependent rights contained in the APHT that has been registered at the

local land office and has been issued a certificate of pendent rights has the function of

determining the position of creditors. If the debtor defaults on a promise that can be

carried out the execution of the object of the dependent right prioritizes the repayment

of creditors. If the value of the dependent rights listed in the APHT has a debt value

greater than the debtor's debt, then the preferred right is attached to the creditor r, and

vice versa applies if the value The greater the debt the creditor is positioned as a

concurrent creditor.

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The determination of the position of creditors is not only assessed limited to the value of

the rights listed in the APHT but also influenced by the results of the auction sale. If the

proceeds from the sale of the liability are greater than the amount of the debt the creditor

is entitled to the introduction of full repayment of the debt. If the proceeds of the sale of

the object of liability are less than the debtor's debt, then the creditor is entitled to

repayment of the debtor's debt from the proceeds of the sale, but The remaining debtor

positions the creditor no longer as a preferred creditor but as a concurrent creditor.

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