| dc.description.abstract | The law on fiducia security is a sub system of the law on real security which is needed by a society, and which cause to legal issues requiring the method of its solving to be conducted by a system approach. This research is aimed to solve juridical problems, i.e. to give a clear explanation concerning goods which are able to become fiducia security object and to seek causal factor of change of the said object, to know the identity and characteristic of fiducia security, to seek and find out the principles of the law on fiducia security which is in rhythm and harmony with the other prevailing principles of the law on real security in the positive law, to search and discover legal ideas of the principle of registration and its purpose in fiducia security, to give right certainty on creditor position in fiducia over fiducia security goods in the event fiducia debtor is bankrupt, to give legal protection to the fiducia creditor or the third party if the fiducia debtor is not the owner of the security goods, and to understand the underlying idea on the prohibition of fiducia creditor to have the security goods in case fiducia debtor is breaching of contract.
This research is carried out by using qualitative method with normative juridical legal approach. Furthermore, this research is also engaged by using socio- juridical approach. The research location is in North Sumatera province and as comparison are Yogyakarta and Central Jakarta. The sample of research is determined on the basis of non-probability sampling technique, namely purposive sampling and for that reason it obtains research subjects consisting of banking institutions (government and private banks), notary, auction office, fiducia registration office and court (district and high courts). Moreover, the research is also conducted in the Supreme Court. This research material is obtained from the library and the field research. In addition to primary data, for secondary data primary legal material, secondary legal material and tertiary legal material are also collected. The research instruments used are interviews, questionnaires and document studies. The method of content analysis is used for credit agreement with juridical approach, which is then, interpreted by using legal knowledge interpretation so that it may give a problem solving at theoretical and practical levels as well.
The result of this research indicates that the development of fiducia security has extended and changed in its term, meaning and object. The basic reason of its extension and change is the influence of the demand of the dynamism society and the law itself. There are three dimensions covered in this causal factor, namely legal reality, idealism and flexibility. The development of fiducia security is endorsed by the horizontal separation principle adopted by the Basic Agrarian Law. In principle, the court decision has been accommodated in the Basic Agrarian Law. The characteristic of fiducia security agreement has changed, covering the nature of the transfer of fiducia security ownership, the nature of the fiducia security agreement, the legal proceeding of fiducia security and the nature of self-contained fiducia security as real security. Stipulation of fiducia security has not been seen
synchronized yet with the other legal principles of real security. This is caused by the fact that the security law stipulation is made partially and is not subject to system approach. This weakness may be overcome by any attempts to synchronize the principles of the law on real security by establishing the real law and the national security law. It is the significant thing to carry out the right option in political strategy of security law. The registration principle for fiducia security is the development which has already become the nature of the law on real security which is aimed to create a legal certainty and to give a legal protection for the society. Accordingly, a publication through the registration has an important juridical meaning to determine the momentum of the arising of real right of fiducia security. In the event the fiducia transferor (debtor) is bankrupt then, the fiducia transferee (creditor) is a separatist creditor. This separatist right cannot be interfered with by anyone unless otherwise stipulated by the law by at all times considering the legal protection for the fiducia transferee (creditor). If the fiducia security agreement is made by the fiducia transferor who is not the owner of the security goods or is not the authorized person to have a control over the security goods which will be delivered to the fiducia transferee (creditor), then, the legal protection shall be granted to the fiducia transferee (creditor) or the third party. Momentum of the authorized ownership as the owner over the security goods occurs at the time of registering the fiducia security. In the case breach of the contract made by the fiducia transferor (debtor) then, the fiducia security object cannot be transferred to the fiducia transferee to possess. The fiducia security goods shall be sold to obtain for the settlement of debt from the fiducia security transferee (creditor). The law reasoning that the fiducia security transferee (creditor) cannot have the fiducia security goods is juridical ratio of the security right itself, namely the purpose of engaging the security of goods. | en_US |
