Kajian Perikatan terhadap Pembiayaan dengan Jaminan Fidusia

Abstract

According to UUJF, every burden on fiduciary collateral has to be made with a Notarial deed in Indonesian as a fiduciary collateral deed registered in the Fiduciary Registrar Office. In practice, however, a financing contract made by a financing company does not use fiduciary collateral institution, or there is no binding in fiduciary collateral as accesoir in financing agreement. Therefore, it is necessary to analyze the implementation of financing contract with fiduciary collateral in a financing company. Financing contract with fiduciary collateral using financing institution has given legal certainty to the holder of fiduciary collateral. The research used prescriptive analytical method. The data were gathered by using the combination of juridical normative method with juridical empirical method, supported by primary and secondary data.

The result of the research shows that, in practice, the implementation of a financing contract with fiduciary collateral in a financing company often exists after the Notarial deed is not followed by registering it because the creditor thinks that so far there is no problem with it. However, he actually should register it just in case the debtor defaults. An underhanded deed is often used to reduce clients' cost, business competition, small amount of credit, and a short term. In a financing contract without fiduciary collateral, the creditor has to file his complaint to the court, or to file his complaint against the debtor's default with the request for confiscation (conservatoir beslag) of the collateral. The problem will arise when the debtor rejects the execution of the collateral. If it happens, the creditor does not have any coercive power to force the debtor to hand in the collateral. What he can do is reporting the case to the police to do the execution. If the creditor himself does the execution, it means that he has done illegal act. In practice, it also often occurs that the financing company sells the collateral without being agreed by the debtors. Actually, legal certainty about a contract of fiduciary collateral is regulated in UUJF, but in its implementation it is often found that fiduciary collateral deed is not registered so that there is not legal certainty for its holder. Besides that, there is no certainty about the time limit of registration and the clear sanction for those who do not register it so that many financing companies which make fiduciary collateral contracts with Notarial deeds do not register them. The Fiduciary collateral itself has its own problem. Although it has already been regulated in the UUJF but its legal principle does not run harmoniously with the other legal principles of fiduciary collateral which can influence the implementation of the execution of fiduciary collateral in the fiduciary collateral contracts.

It is recommended that financing companies which make financing contracts,

using fiduciary collateral, make them in Notarial deeds and register them to Fiduciary. Registrar Office so that the publicity principle of fiduciary collateral is fulfilled, and it can be a legal certainty for a financing company as the creditor to get his loan from debtors. The position of the object which is used as the fiduciary collateral should be specified accurately, including its time limit of registration and the imposition of a sanction for not registering it, Besides that, the facility and infrastructure of the Fiduciary Registrar Office should be improved.