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Ada Pertanyaan? Hubungi Kami Marcell Sihombing, Hasyry Agustin
Fiduciary-collateral procedural requirements remain a subject of fierce debate due to their critical role in the business world. Thus any improvements made to the regulatory framework governing this particular area will be, it is widely believed, of vital importance.
This position was asserted at a recent Fiduciary Servicing Coordination Meeting, which was attended by the Directorate General of General Legal Administration, as well as officers from regional Ministry of Human Rights offices across Indonesia. During the meeting, Sudrajad Dimyati, a judge at the Supreme Court, specifically addressed five major issues which he believes require further improvements.
The first issue raised by Mr. Dimyati concerns the fact that many fiduciary assignees have yet to register their deeds of fiduciary collateral with the Fiduciary Registration Office, which is mandatory according to Law No. 42 of 1999 on Fiduciary Collateral (Fiduciary Law) and its implementing regulations. The Fiduciary Registration Office is then required to issue an executable fiduciary collateral certificate, thus nullifying the need to file for an execution award with the court should disputes between any concerned parties arise. Indeed, any fiduciary collateral becomes non-executable without an executable fiduciary collateral certificate, as stipulated under Article 29 of the Fiduciary Law.
Moreover, some parties even draw up deeds of fiduciary collateral privately instead of having them drawn up before a notary. In some cases, there are also parties who draw up and register such deeds when a fiduciary assignor’s installment payments start to dwindle. According to Mr. Dimyati, most parties intentionally enter into privately drawn up collateral agreements in order to avoid paying notary fees or registration fees at the Fiduciary Registration Office. At present, the fee for the drawing up of deeds of fiduciary collateral by a notary for transactions of up to IDR 100 million is set at 2.5% of the transaction value.
“The result of not drawing up fiduciary deeds before a notary or registering such deeds with the Fiduciary Registration Office is the need to file for an execution award with the court in the event of a dispute occurring, which can obviously result in a long, drawn-out process,” asserted Mr. Dimyati in Bogor on Tuesday, 3 May 2016.
The second issue raised by Mr. Dimyati concerns fiduciary assignees who still engage in the improper execution of collateralized goods. Mr. Dimyati pointed out that the execution of collateralized goods can only be performed after the necessary requirements have been satisfied, including the requirement that all assignees secure fiduciary collateral certificates, register their deeds of fiduciary collateral, and also issue written notices to the fiduciary assignor prior to any execution, which must be conducted with the assistance of the national police.
“However, in practice, these procedural requirements are often disregarded with the result that new legal issues and problems arise,” asserted Mr. Dimyati.
The third issue raised by Mr. Dimyati involves the differing severity levels of the various criminal penalties which are to be imposed in cases of violations of the fiduciary collateral provisions sets out under the Fiduciary Law and the Indonesian Criminal Code (KUHP).
Article 36 of the Fiduciary Law stipulates that fiduciary assignors who unlawfully mortgage or who transfer fiduciary collateral objects to any other party or parties could be subject to two years imprisonment and a maximum fine of IDR 50 million. Meanwhile, the offence of embezzlement as set out in Article 372 of the KUHP can be subject to a term of up to four years imprisonment. Mr. Dimyati believes that this is the primary reason why so many fiduciary assignees are reluctant to register themselves with the Fiduciary Registration Office, as the KUHP option involves less severe criminal sanctions.
The fourth issue raised by Mr. Dimyati is the fact that the authority to settle any disputes as held by the Consumer Dispute Settlement Board (Badan Penyelesaian Sengketa Konsumen - BPSK) overlaps with that of District Courts. According to Mr. Dimyati, it is common practice for any deed of fiduciary collateral and its principal agreement to contain a standardized clause, therefore allowing fiduciary assignors to bring their disputes before the BPSK.
Mr. Dimyati also raised a fifth issue, namely that few members of the general public understand how to access the website that sets out information on collateralized goods. During his address, Mr. Dimyati emphasized the importance of this issue due to the fact that many still resort to the illegal practice of mortgaging or transferring fiduciary collateral objects to other parties.
“This [access to the collateralized-goods website] is essential in order to reduce such illegal practices. It is hoped that the general public will come to realize that if goods have been subject to fiduciary collateral, then they should refuse to engage in any mortgage or transfer of the goods in question,” Mr. Dimyati concluded.
(rfs/sp)
Marcell Sihombing, Hasyry Agustin
Fiduciary-collateral procedural requirements remain a subject of fierce debate due to their critical role in the business world. Thus any improvements made to the regulatory framework governing this particular area will be, it is widely believed, of vital importance.
This position was asserted at a recent Fiduciary Servicing Coordination Meeting, which was attended by the Directorate General of General Legal Administration, as well as officers from regional Ministry of Human Rights offices across Indonesia. During the meeting, Sudrajad Dimyati, a judge at the Supreme Court, specifically addressed five major issues which he believes require further improvements.
The first issue raised by Mr. Dimyati concerns the fact that many fiduciary assignees have yet to register their deeds of fiduciary collateral with the Fiduciary Registration Office, which is mandatory according to Law No. 42 of 1999 on Fiduciary Collateral (Fiduciary Law) and its implementing regulations. The Fiduciary Registration Office is then required to issue an executable fiduciary collateral certificate, thus nullifying the need to file for an execution award with the court should disputes between any concerned parties arise. Indeed, any fiduciary collateral becomes non-executable without an executable fiduciary collateral certificate, as stipulated under Article 29 of the Fiduciary Law.
Moreover, some parties even draw up deeds of fiduciary collateral privately instead of having them drawn up before a notary. In some cases, there are also parties who draw up and register such deeds when a fiduciary assignor’s installment payments start to dwindle. According to Mr. Dimyati, most parties intentionally enter into privately drawn up collateral agreements in order to avoid paying notary fees or registration fees at the Fiduciary Registration Office. At present, the fee for the drawing up of deeds of fiduciary collateral by a notary for transactions of up to IDR 100 million is set at 2.5% of the transaction value.
“The result of not drawing up fiduciary deeds before a notary or registering such deeds with the Fiduciary Registration Office is the need to file for an execution award with the court in the event of a dispute occurring, which can obviously result in a long, drawn-out process,” asserted Mr. Dimyati in Bogor on Tuesday, 3 May 2016.
The second issue raised by Mr. Dimyati concerns fiduciary assignees who still engage in the improper execution of collateralized goods. Mr. Dimyati pointed out that the execution of collateralized goods can only be performed after the necessary requirements have been satisfied, including the requirement that all assignees secure fiduciary collateral certificates, register their deeds of fiduciary collateral, and also issue written notices to the fiduciary assignor prior to any execution, which must be conducted with the assistance of the national police.
“However, in practice, these procedural requirements are often disregarded with the result that new legal issues and problems arise,” asserted Mr. Dimyati.
The third issue raised by Mr. Dimyati involves the differing severity levels of the various criminal penalties which are to be imposed in cases of violations of the fiduciary collateral provisions sets out under the Fiduciary Law and the Indonesian Criminal Code (KUHP).
Article 36 of the Fiduciary Law stipulates that fiduciary assignors who unlawfully mortgage or who transfer fiduciary collateral objects to any other party or parties could be subject to two years imprisonment and a maximum fine of IDR 50 million. Meanwhile, the offence of embezzlement as set out in Article 372 of the KUHP can be subject to a term of up to four years imprisonment. Mr. Dimyati believes that this is the primary reason why so many fiduciary assignees are reluctant to register themselves with the Fiduciary Registration Office, as the KUHP option involves less severe criminal sanctions.
The fourth issue raised by Mr. Dimyati is the fact that the authority to settle any disputes as held by the Consumer Dispute Settlement Board (Badan Penyelesaian Sengketa Konsumen - BPSK) overlaps with that of District Courts. According to Mr. Dimyati, it is common practice for any deed of fiduciary collateral and its principal agreement to contain a standardized clause, therefore allowing fiduciary assignors to bring their disputes before the BPSK.
Mr. Dimyati also raised a fifth issue, namely that few members of the general public understand how to access the website that sets out information on collateralized goods. During his address, Mr. Dimyati emphasized the importance of this issue due to the fact that many still resort to the illegal practice of mortgaging or transferring fiduciary collateral objects to other parties.
“This [access to the collateralized-goods website] is essential in order to reduce such illegal practices. It is hoped that the general public will come to realize that if goods have been subject to fiduciary collateral, then they should refuse to engage in any mortgage or transfer of the goods in question,” Mr. Dimyati concluded.
(rfs/sp)