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Print This Article Yuridika: Volume 35 No 3, September 2020 501 Volume 35 No 3, September 2020 DOI: 10.20473/ydk.v35i3.17004 Fakultas Hukum Universitas Airlangga, Jalan Dharmawangsa Dalam Selatan Surabaya, 60286 Indonesia, +6231-5023151/5023252 YURIDIKA Fax +6231-5020454, E-mail: [email protected] Yuridika (ISSN: 0215-840X | e-ISSN: 2528-3103) by http://e-journal.unair.ac.id/index.php/YDK/index under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 FAKULTAS HUKUM UNIVERSITAS AIRLANGGA International License. Article history: Submitted 30 December 2019; Accepted 22 April 2020; Available Online 1 September 2020. Sister Ship Binding Clause as a Reinforcement of Debt Repayment Legal Certainty on Ship Mortgage Fani Martiawan Kumara Putra [email protected] Wijaya Kusuma Surabaya University Abstract The field of marine transportation plays a role that is not less important than land transportation in terms of economic development in Indonesia. As a result of globalization, business activity continues to increase, whether it is business in the field of marine transportation or outside the field, it is certainly undeniable that the activity requires a very large funds, which funds can be obtained by one way is to apply for credit/loans. Large amount of loans will only be given with the imposition of collateral as a further process. The imposition of collateral for large amount of loans may designate the ship as its collateral object by utilizing the Mortgage security agency. However, when the ship is being vetted on a voyage across national borders, the impact is when its debts mature, then the execution of such ship will be difficult, caused by the inadequate legal rules in Indonesia, and not all countries ratify the ship’s arrest convention. This study aims to provide a solution in order to achieve legal certainty of Mortgaged object execution that being across national borders for a significant development of shipping business. This research is normative research. The result obtained is the need of a clause in the Mortgage security document concerning the binding of sister ship with equal value, as the collateral object backup, when the execution of ship loaded with Mortgage security is unable to be done since it is located outside the state border. Keywords: Mortgage, Sister Ship, Legal Certainty; Execution. Introduction Indonesia straddles the Equator between the Indian Ocean and the Pacific Ocean. Indonesia’s many tourism resources make Indonesia an excellent tourist destination. For example, Indonesia has abundant cultural heritage, and natural resources, throughout the country. It has pristine and virgin tropical forest and an authentic heritage. Therefore, Indonesia promotes and markets itself as Wonderful Indonesia, and the slogan is quite true, although not necessarily always in good 502 Fani Martiawan: Sister Ship Binding ways. The beautiful natural resources of Indonesia are a major concern for the government to promote and market Indonesia to potential tourists, to increase it economy aspect. Indonesia offers an attractive, authentic and wonderful tourist destination, which differs from what other countries in particular western countries, can offer. This sentence promises that Indonesia is known for its variety of wonderful places, which are rich in natural beauty, whether under the sea, in the beautiful mountains, or the tropical forests.1 The effort to increase it economic aspect is a thing that needs to be done since the pattern of business transactions in the world is demanded to be increasingly developed on the basis of the existence of globalization that has an influence on the world market. The modern challenges of globalization have affected the financial sector as well. Crisis phenomena emerge on a frequent basis.2 One indicator of changes in world markets is economic growth. Economic growth as one of the supporting developments in a country, demands the need to take several steps so that the expected elements of economic growth are successful, and the sources of development funds are increasing. Along with the development of the era and the development of increasingly advanced technology, as well as world economic growth that is so fast, demanding business players in Indonesia to be able to compete for the continued existence of their business. Therefore, the Vice President of the Republic of Indonesia affirms that at present the government has implemented the three pillars of strategy aimed at increasing competitiveness and increasing the number of industries in Indonesia. As country rich in natural resources, Indonesia should be able to develop the processing industry so that it can be utilized as efficiently as possible. The three pillars of the Vice President are: 1 Muhammad Arfin Muhammad Salim, ‘Authenticating the Tourist Destination on the Official Tourism Website of Indonesia: A Multimodal Perspective’ (2018) VI Astra Salvensis (Supplement no. 1).[338]. 2 Imeda Tsindeliani, ‘Financial Law as a Public Law Branch: A Fresh Look at the Signs of Publicity’ (2019) 22 Journal of Legal, Ethical and Regulatory Issues <https://www.abacademies.org/ articles/financial-law-as-a-public-law-branch-a-fresh-look-at-the-signs-of-publicity-8677.html>.[2]. Yuridika: Volume 35 No 3, September 2020 503 1. Indonesia no longer sells raw materials to the world market. This strategy is followed by a downstream program to increase added value; 2. Growing the domestic industry to create equality and create new jobs; 3. Being part of the global supply chain. 3 One form of adaptation for business people, is by developing the company. In order to realize this development, of course, business people in a need of capital, while the capital needed is not a small capital, but often what is needed is capital in large amounts, solely for the continued development of the quality of their business and/or economy. This means that to be able to meet the needs of business people in the economic field, it is necessary to have adequate facilities and infrastructure, so that economic activities may run smoothly and the profit gained will be increased and be able to compete in the midst of such rapid global economic growth. One form of facilities and infrastructure is of course the field of credit or financing. Credit or financing is a concrete manifestation of the form of financial support for business people who need loan funds to expand, improve and maintain the balance of their business. Thus, the presence of this credit institution has a very important role in economic activities and growth and development in the current era. Financing institutions are currently more often used for registered movable objects such as cars and motorbikes, while for business development, credit institutions are more often used. Credit institutions can be in the form of Banks or Non-Banks, but at this time, credit institutions that are often used are Banks. Banking is a bridge for the real sector finance, both in the context of improving business and investment climate, also in terms of job creation.4 Discussing about the credit carried out by the Bank, of course, will discuss the money traffic, where credit activities will in and out, not only low value, but also very high value. To maintain the health of these credit activities, the credit should also be accompanied 3 Soeling Pantius D, ‘Enhancing Regional Competitiveness Through Village Owned Enterprise in East Priangan Indonesia’ (2018) VI Astra Salvensis (Supplement no. 1).[724]. 4 Gabrielia Febrianty Shofiana and Abd. Shomad, ‘Transformation of Banking Law in Indonesia’ (2019) 19 Jurnal Dinamika Hukum.[430]. 504 Fani Martiawan: Sister Ship Binding by security, this is intended to provide legal security and certainty in the provision of credit, both for those creditors or the debtor. This security is one form of the precautionary principle that must be applied by the Bank as a credit institution, regulated in Law No.7 of 1992 concerning Banking, as amended by Act No.10 of 1998 concerning Banking (hereinafter referred to as Banking Law) Article 2 confirms that Indonesian Banking in its business is based on economic democracy using the principle of precautionary. The precautionary principle is further regulated in Article 29 paragraph (2) of the Banking Law which stipulates that Banks are required to maintain Bank soundness in accordance with capital adequacy, asset quality, management quality, liquidity, and profitability, solvency and other aspects related to Bank business, and must carry out business activities with this precautionary principle. The Bank’s prudential principle in practice is realized in the form of 6C, namely Character; Capacity; Capital; Collateral, Condition of Economy, and Constraint. Regarding credit matters as above, what needs to be considered is the collateral aspect, which means the security of the credit. As the name implies, namely collateral, it is necessary to have an object or object that will be secured to convince and obtain funds from the creditor. Besides that, it is also necessary to pay attention to the security institution, considering that later the procedural provisions of this security institution will determine whether the security process is valid or not. The security institution itself has actually been known since the existence of Burgerlijk Wetboek (hereinafter referred to as BW). This security institution is very related to the classification types of objects, which in BW, objects can be classified into 6 (six) kinds, and one of the most important classification forms is movable and immovable objects. The importance distribution of movable and immovable objects is related to Bezit (Article 1977 BW), Bezwaring (Article 1150-1232 BW), Levering (Article 612, 613, 616 BW), Beslag (Article 197 HIR), and Verjaring (Article 610 jo. 1946, 1963, 1969 BW). Bezwaring (security) in the case of movable and immovable objects became the basis for the division of the security institution. For movable objects, the security Yuridika: Volume 35 No 3, September 2020 505 institution can use Gadai (regulated in Article 1150-1160 BW), or with Fidusia (regulated in Law No.
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