Volume 3 Issue 2, December 2018: pp. 144-170. Copyright ©2018 TALREV. Faculty of Law Tadulako University, Palu, Central Sulawesi, Indonesia. TALREV ISSN: 2527-2977 | e-ISSN: 2527-2985. Open acces at: http://jurnal.untad.ac.id/index.php/TLR
APPLICATION OF FINANCING BASED WARRANTY CONTRACT OF PRINCIPLES FOR SETTLEMENT WITH RESPECT TO THE RESULTS AND FINANCING PROBLEMS
Zulfi Diane Zaini1, Arifin2, Lukmanul Hakim3, Aprinisa4
1Faculty of Law, Bandar Lampung University JL. Zainal Abidin Pagar Alam NO. 26, Bandar Lampung, Lampung, 35142, Indonesia Telp./Fax: +62-721-701463 Email: [email protected]
2Faculty of Law, Bandar Lampung University JL. Zainal Abidin Pagar Alam NO. 26, Bandar Lampung, Lampung, 35142, Indonesia Telp./Fax: +62-721-701463 Email: [email protected]
3Faculty of Law, Bandar Lampung University JL. Zainal Abidin Pagar Alam NO. 26, Bandar Lampung, Lampung, 35142, Indonesia Telp./Fax: +62-721-701463 Email: [email protected]
4Faculty of Law, Bandar Lampung University JL. Zainal Abidin Pagar Alam NO. 26, Bandar Lampung, Lampung, 35142, Indonesia Telp./Fax: +62-721-701463 Email: [email protected]
Submitted: Nov 23, 2018; Reviewed: Dec 12, 2018; Accepted: Dec 31, 2018
Abstract A collateral is prohibited in contract based on profit sharing, because this contract is trust-based agreements. But in order to avoid high credit/financing risk, shariah bank- ing in practice implements it. In addition, the binding of collateral used ini shariah banking still uses conventional agreements. This research uses normative law ap- proach(literature research). The result if this research is a collateral has an importen position in the contract based on profit sharing in shariah bank is accordance with the prudential banking principle and sharia compliance because a collateral is applied not as assurance effort of the financial capital, but to guarantee the orderly repay- ment/settlement of amount of the obligations and profit sharing ratio at the time in ac- cordance with the agreed upon agreement and the disbursement after the customer’s proven negligence, the binding of collateral using the conventional binding provided in the exixting positive law, it has not specialy accommodated the shariah principle and collateral has an urgent function as part of the settlement of financing problems and executed after the customer is declared negligent.
Keywords: A Collalteral; Contract Based; Settlement; Profit Sharing Principle
INTRODUCTION mediary banking principle that moves The application of collateral and funds from the community and redistrib- collateral, in banking practices is needed utes these funds to the people who need to support its main function as an inter- them. The need for collateral is based on
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the assumption that in the banking busi- Sharia Business Unit distributes to the fa- ness, especially credit distribution, there is cility recipient customers by conducting a a very high degree of risk. Therefore, careful assessment of character, ability, banks in channeling credit must based on capital, collateral, and business prospects the prudential principle and always pay of prospective Facility Recipient Custom- attention to sound credit principles, given ers.3 the funds channeled by the bank come The provisions in the Sharia Bank- from the public who entrust their money ing Law do not explicitly regulate the sub- to the Bank.1 In principle, credit dis- ject matter of sharia-based guarantees, so bursement by banks does not always have that in fact the Commercial Banks that to be accompanied by conditions for col- provide financing based on sharia and lateral, because guarantees are considered Syariah Banks that provide Islamic fi- to exist by looking at opportunities and nancing still apply conventional guaran- bright business prospects of prospective tees. Until now, the guarantee practice in debtors. With the availability of collateral, financing Syariah Banking has not been if the debtor (recipient of credit) breaks supported by regulations that specifically the promise (default, default) the creditor regulate guarantee law in Syariah Bank- gets a replacement from the sale (auction) ing, therefore, the implementation of col- of the collateral.2 lateral binding by Syariah Banks is by ap- Within the scope of the financing plying the existing conventional legisla- agreement on Syariah Banking, in Article tion concerning guarantee institutions.4 23 of The Act Number 21 Year of 2008 The application of conventional concerning Sharia Banking. Sharia Banks guarantees in Syariah Bank financing and / or Sharia Business Units are re- practices is considered problematic be- quired to have confidence in the willing- cause the two banking systems have dif- ness and ability of prospective recipients ferent characteristics. Banks based on sha- of the facility to pay off obligations on 3 Noor Hafidah, (2012), Implementasi Konsep Ja- time, before the Syariah Bank and / or minan Syariah dalam Tata Aturan UU Perbankan Syariah (Implementation of the Sharia Collateral Concept in the Rules of Sharia Banking Law) 1 M. Khoidin, (2017), Hukum Jaminan (Hak-Hak dalam Arena Hukum Volume 6, Nomor 2, Agustus Jaminan, Hak Tanggungan, Eksekusi Hak 2012, p. 123 4 Tanggungan; (Collateral Laws (Collateral Rights, Fathurrahman Djamil, (2014), Penyelesaian Mortgage, and Execution Of Mortgage)), Pembiayaan Bermasalah di Bank Syariah, (Set- Laksbang Yustitia Surabaya, Surabaya, 2017, p. 4 tlement of Problematic Financing in Syariah 2 Ibid., p. 4-5 Banks), Sinar Grafika, Jakarta, p. 41
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ria principles or Syariah Banks or Syariah The profit sharing system (profit and Banks, as well as conventional banks, lost sharing) is a differentiator between function as intermediary institutions that Syariah Banks and conventional banks. In move funds from the community and re- general, the distribution of funds with the distribute these funds to the people who principle of profit sharing can be done need them in the form of financing facili- with four contracts, namely al- ties. The only difference is that Syariah musyarakah, al-mudharabah, al-muzara'ah Banks do their business activities not and al-muzaqah. In the banking world, the based interest (interest fee), but based on most widely used contract is al- sharia principles, namely the principle of musyarakah and al-mudharabah. Whereas profit and loss sharing principle.5 al-muzaraah and al-muzaqah are usually Syariah Banks do not use the term in agriculture.7 "credit" which bases its return on interest, Economists and Islamic jurists agree as conventional banks, but "financing" that mudaraba must be the main basis in which bases its profits on profit sharing or lieu of a credit transaction that blooms in other methods in accordance with the re- terms of providing funds to entrepreneurs. spective contracts of Islamic financing. In This agreement is considered appropriate Syariah Banks the distribution of funds to for long-term financing for industrial pro- customers (financing), is carried out using jects. The Bank provides the total amount four main principles, namely the principle of capital needed to carry out investments of buying and selling (murabahah, istisna, proposed by a businessman who is a man- salam), the principle of profit sharing ager in the project.8 In addition, Syariah (mudharabah and musyarakah), the prin- Banks can also provide long-term financ- ciple of rent (pure ijarah and ijarah
6 muntahiyah bittamlik), and qardh. with Bank Indonesia Regulations Number 7/46 / PBI / 2005 and re-affirmed in Act Number 21 of 2008 concerning Sharia Banking. Along with the 5 Sutan Remy Sjahdeini, (2005), Perbankan Islam birth of the Financial Services Authority institu- dan Kedudukannya dalam Tata Hukum Perbankan tion, various sharia banking products and activities Indonesia, (Syariah Banking and its Position in have been dynamically regulated among others in Indonesian Banking Law), Pustaka Utama Grafiti, the Financial Services Authority Circular Number Jakarta, p. 1 36 / SEOJK.3 / 2015 concerning sharia banking 6 The types of contracts that are applied in the products and activities. Syariah Banking business in Indonesia have been 7 Syafii Antonio, (2003), Bank Syariah dari Teori regulated in a number of the first and most im- ke Praktik (Syariah Banks from Theory to Prac- portant laws and regulations based on Law Num- tice), Gema Insani, Jakarta, p. 90-93 ber 10 of 1998 concerning Amendments to Act 8 Elias G. Kazarian, Islamic Versus Traditional Number 7 of 1992 concerning Banking. The terms Banking, Financial Innovation in Egypt in Sutan of the contract in the act, further explained in detail Remi Sjahdeini, Op.Cit., p. 112
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ing for existing companies based on The problem is that if there is no guaran- musyarakah (equity participation), by tee in distributing financing based on prof- buying shares from the company where it sharing, Syariah Banks as shahibul mal the bank becomes a partner of the custom- will face financing risk when there is a er in the investment project concerned.9 default (default, default) from the recipi- Although profit sharing is considered an ent of the financing facility, so that it will advantage of Syariah Banks, the weakness affect the bank's function as an intermedi- of Syariah Banks also lies in the profit ary utilize public funds to be distributed in sharing itself which is high risk and vul- the form of financing. The absence of ful- nerable to the possibility of moral hazard. filling the financing agreement will poten- This is because the system assumes that tially lead to non-performing financing everyone is honest, so it takes extra effort which is detrimental to banks and inves- to examine prospective customers and tors. Based on the background described monitor carefully the customers who re- above, there are several issues that will be ceive financing.10 studied in this study, namely: The existence of high risk in financ- a. How is the legal position of the col- ing based on the profit sharing principle, lateral goods in the financing agree- the prudential principle is required which ment with the principle of profit shar- is realized by the guarantee that gives sha- ing in Syariah Banks? ria banks confidence in the feasibility of b. How is the binding of collateral items customers to obtain financing, but the ap- in the financing agreement based on plication of collateral in the mudharabah the principle of profit sharing in Sya- and musyarakah financing agreements ac- riah Banks? cording to Islamic law, not allowed, be- c. What is the urgency of collateral cause the two contracts are a trust contract goods in the completion of financing (uqud al-amanah), not a debt agreement.11 agreements based on the principle for
problematic results on Syariah 9 Ibid Banks? 10 Akhmad Mujahidin, (2016), Hukum Perbankan Syariah (Sharia Banking Law), RajaGrafindo Persada, Jakarta, p. 49 11 According to Sutan Remy Sjahdeini, there is no guarantee in the agreement or mudharabah agree- ment because it is not a loan agreement because it does not apply to the provisions of Article 1131 of tion trust is the most important, the bank must not the Civil Code regarding collateral debt guaran- ask for any collateral from the mudarib. See Sutan tees. Because in the mudharabah financing transac- Remy Sjahdeini, Op. Cit., P. 33
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RESEARCH METHODS level of everything related to the Type of Research Business Activities of Syariah Bank- This research is a form of normative ing Institutions in Indonesia, among juridical research, namely research fo- others in the form of Islamic financ- cused on studying the norms or norms and ing based on the Kehati Principles. be rules in positive law relating to the issues careful, and closely related to the is- to be discussed. Then, normative jurispru- sues to be discussed, especially those dence research includes the study of: prin- related to the legal position of collat- ciples of law; Legal systematics; and legal eral goods in the financing agreement synchronization. The main characteristic with the principle of profit sharing in of normative juridical legal research is Syariah Banks; Binding of collateral that the main source is legal material ra- goods to financing agreements based ther than social data or facts. Approach on the principle of profit sharing in The normative juridical legal research is Syariah Banks, as well as the urgency intended to collect various laws and regu- of collateral items in the settlement of lations, theories related to the Sharia financing agreements based on the Banking Institution Business Activities in principle of problematic results for Indonesia, among others as stipulated in: Sharia Banks. The Act Number 21 Year of 2008 con- b) Concept Approach (Conseptual ap- cerning Sharia Banking; The Act Number proach) is used to examine the legal 21 Year of 2011 concerning the Financial concepts relating to the Business Ac- Services Authority (FSA); Financial Ser- tivities of Syariah Banking Institu- vices Authority Regulation and other Sha- tions in Indonesia, among others, in ria Banking Regulations. the form of legal status of collateral Research Approach goods in financing agreements with In this study, there are two main ap- the principle of profit sharing in Sya- proaches used, namely: the statute ap- riah Banks; Binding of collateral proach, and the conceptual approach, goods to financing agreements based namely: on the principle of profit sharing for a) The statute approach is used to exam- Sharia Banks, as well as the urgency ine the rules or legal provisions in ac- of collateral items in the settlement of cordance with the hierarchy or the financing agreements based on the
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principle of problematic returns on g) Bank Indonesia Regulation Num- Sharia Banks whether expressed by ber: 14/15 / PBI / 2012 concerning experts or in the form of legal science Asset Quality Rating for Commer- or legal abstraction which is the ratio cial Banks; decidendi of a rules related to the h) and several other related Regula- Business Activities of Syariah Bank- tions. ing Institutions in Indonesia. Collection of Legal Materials 2. Secondary Legal Materials, namely: The collection of legal materials is Legal Material that can provide an ex- done using a card system and electronic planation of primary legal materials ob- system, while the legal material used in- tained from various literatures related cludes primary legal materials, secondary to the subject matter, scientific journals legal materials and tertiary legal materials in the form of research results in the sourced from: field of legal science, opinions and re- 1. Primary Legal Material consists of search results from Experts / Experts in Legislation and other Regulations relat- the field Legal studies, as well as the ing to the problems studied, including: results of the symposium carried out by a) 1945 Constitution of the Republic related parties relating to the issues un- of Indonesia; der study, particularly regarding the b) The Civil Code (KUH Perdata); Business Activities of Syariah Banking c) The Act Number 7 of 1992 juncto Institutions in Indonesia, among others, Act Number 10 of 1998 concern- in the form of bank lending based on ing Banking; the Prudential Principles, and closely d) The Act Number 23 of 1999 juncto related to the issues to be discussed , in Act Number 3 of 2004 juncto Act particular the legal position of collat- Number 6 of 2009 concerning eral goods on financing agreements Bank Indonesia; with the principle of profit sharing in e) The Act Number 21 of 2008 con- Syariah Banks; Binding of collateral cerning Sharia Banking; goods to financing agreements based f) The Act Number 21 of 2011 con- on the principle of profit sharing for cerning the Financial Services Au- Sharia Banks, as well as the urgency of thority; collateral items in the settlement of fi-
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nancing agreements based on the prin- as, supporting materials from Internet ciple of problematic returns on Sharia sources, and others. Banks, whether expressed by experts or Data Analysis in the form of legal science or legal ab- The legal material collected is ana- straction which is the ratio decidendi of lyzed by steps including inventorying, a rule relating to the Business Activi- systematizing, interpreting and explaining. ties of Syariah Banking Institutions in Descriptions include "content and positive Indonesia, among others, in the form of legal structure",12 while the systematiza- legal status of collateral goods in fi- tion step is carried out to describe is and nancing agreements with the principle structure or hierarchical relationships be- of profit sharing in Syariah Banks; tween legal rules. In this systematization Binding of collateral goods to financ- activity, a correlation analysis of the relat- ing agreements based on the principle ed legal rules is carried out in order to be of profit sharing for Sharia Banks, as understood properly.13 At this stage the well as the urgency of collateral items rationalization and simplification of the in the settlement of financing agree- legal system is also carried out by "con- ments based on the principle of prob- structing general rules and general notions lematic returns on Sharia Banks wheth- so that legal material becomes better or- er expressed by experts or in the form ganized, more reasonable and logically of legal science or legal abstraction becomes clearer and more appropriately which is the ratio decidendi of a rules understood. At the explanatory stage an related to the Business Activities of explanation and analysis is carried out on Syariah Banking Institutions in Indone- the meaning contained in the rule of law sia. in relation to legal issues in this research 3. Tertiary Legal Materials, namely: Legal so that the whole forms a unified logical- Material that can provide meaningful ly. Legal analysis is an open system, explanations or explanations for prima- which means that "the rule of law and de- ry legal materials and secondary legal
materials such as legal dictionaries, In- 12 Philipus M. Hadjon, (1994), Pengkajian Ilmu Hukum Dogmatik (Normatif)(Study of Dogmatic donesian and English dictionaries, Law (Normative), dalam Yuridika Nomor 6 Tahun IX, November – Desember, p. 6 Newspaper articles, Legal encyclopedi- 13 Bernard Arief Sidharta, (1999), Refleksi Tentang Struktur Ilmu Hukum (Reflection on the Structure of Law), Cetakan Pertama, Mandar Maju, Ban- dung, p. 150
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cisions must be considered in a relation- principle of cooperation or an effort be- ship and also legal norms are based on tween a bank and a customer to finance a legal principles and behind legal princi- particular project that each party provides ples can be systematized by other legal funds in accordance with the agreement symptoms.14 With this pattern of legal ma- provided that profits will be divided ac- terial analysis, it will be easy to observe or cording to their respective profit sharing analyze the Business Activities of Bank- ratio and losses borne according to the ing Institutions in Indonesia, among oth- percentage of each fund's participation. ers, as stipulated in Act Number 21 Year Article 23 of Act Number 21 Year of 2008 concerning Sharia Banking. of 2008 concerning Sharia Banking re- quires Sharia Banks and / or UUS to have ANALYSIS and DISCUSSION confidence in the willingness and ability Position of Guaranteed Goods in Fi- of prospective recipient of the Facility to nancing Contract Based on Profit Shar- repay the obligation in time, before the ing Principles Islamic bank and / or UUS distribute to As previously stated, what is meant the recipient customers by doing careful by profit sharing based financing agree- assessment of character, ability, capital, ment is the mudharabah financing agree- collateral, and business prospects of pro- ment and musyarakah financing agree- spective Facility Recipient Customers. ment. It can be understood that the mean- Referring to these provisions, what ing of mudharabah financing agreement is is meant by credit guarantees or financing a contract between the Sharia Bank as the is the confidence in the ability and ability owner of the capital (shahibul mal) and of the debtor Customer to repay their ob- the Customer (mudharib) in which the ligations as agreed. In a broad sense, cred- Bank provides a ceiling or ceiling of funds it guarantees or financing include the used as capital for customers to run their character, ability, capital, collateral and business. The concept of the Musharaka business prospects of the debtor or known contract is used as a term of financing as Principle 5 C (Character, Capital, Ca- agreement based on the musyarakah prin- pacity, Collateral and condition of eco- ciple. In the agreement document, what is nomic). Where as in the narrow sense meant by musyarakah principle is the what is meant by collateral is collateral /
collateral or collateral. 14 Philipus M. Hadjon, Loc Cit
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According to the Big Indonesian repayment of the obligations of the Facili- Dictionary, the word "guarantee" comes ty Recipient Customer. from the word "guarantee" which means From this definition, it can be un- to bear. A guarantee is a liability for the derstood that collateral is a form of loan received (borg) or the guarantee or agreement between creditors and debtors promise of someone to bear the debt or the in an agreement where the debtor or third obligation is not fulfilled. The word party promises a number of assets for the "guarantee" is a translation from the purpose of repayment of debt or financing Dutch language, namely zakerheid or cau- according to the provisions of the existing tie. Both terms include in general the ways legislation. the creditor guarantees the fulfillment of In the Sharia Banking Law, the term the invoice, in addition to the debtor's "collateral" is used to refer to collateral general liability for the goods. items. Collateral is an additional guaran- In the legislation can be found in tee, whether in the form of movable ob- Article 1131 of the Civil Code and the jects or immovable objects, which are Elucidation of Article 8 of the Banking submitted by the Collateral owner to Sha- Law, but in both regulations it is not ex- ria Banks and / or Sharia Business Units, plained what is meant by collateral. in order to guarantee the repayment of the In addition to the term collateral, the obligations of the Facility Recipient Cus- term collateral is also known. The term tomer. collateral can be read in article 1 Number The guarantee in general serves as a 23 of Act Number 10 Year of 1998 con- guarantee of repayment of credit / financ- cerning Amendments to Act Number 7 ing. Guarantee in the form of character, Year of 1992 concerning Banking. The capability, capital and business procedures term collateral can also be found in Act owned by the debtor is an immaterial Number 21 Year of 2008 concerning Sha- guarantee that functions as a first way out. ria Banking. Collateral is an additional With this immaterial guarantee, it is ex- guarantee, whether in the form of movable pected that the debtor can manage his objects or immovable objects which are company well so as to obtain business handed over by the collateral owner to the revenue in order to pay off the credit / fi- Sharia Bank, in order to guarantee the nancing as agreed. While the credit / fi- nancing guarantee in the form of material
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/ material collateral serves as a second wards. In this case, what happens is direct way out. As a second way out, the execu- investment between shahib al-mal (as a tion of sales / execution of collateral is surplus unit) and mudarib (as a deficit only carried out if the debtor fails to fulfill unit). In direct financing like this, the role its obligations through first way out. of banks as intermediary institutions does The financing / credit agreements not exist.Classical mudharabah like this are made based on the provisions regard- has special characteristics, namely that ing the guarantee binding institution. In usually the relationship between shahib al- the perspective of positive law, according maal and mudharib is a personal and di- to the development of the guarantee law in rect relationship and is based on mutual Indonesia, at present the material guaran- trust (amanah). Shahib al-maal only wants tee institution is not only limited to mort- to hand over his capital to someone he gage and mortgage as stipulated in the knows well his professionalism and char- Book II of the Civil Code. Due to the en- acter. actment of the Basic Agrarian Law, the Contemporary scholars have inno- right to land if it is presented as a collat- vated new mudaraba schemes, namely eral object, the institution used is the Un- mudaraba involving three parties. This derwriting Right whose rules are con- additional one party is played by Islamic tained in Act Number 4 Year of 1996 con- banks as an intermediary institution that cerning Morgage Rights. In addition, the brings together shahib al-maal and emergence of a Fiduciary material guaran- mudarib. So there is an evolution from the tee body as stated in Act Number 42 Year concept of direct financing to indirect fi- of 1999 concerning Fiduciary Guarantees. nancingIn sharia banking contracts, In modern banking practices, the mudharabah is placed on the side of fund- mudharabah contract does not only apply ing and financing. On the fund raising between two parties directly, namely sha- side, mudharabah is placed on: time sav- hib al-maal directly dealing with mudarib. ings; ordinary deposits and special (spe- This scheme is a standard scheme that can cial investment) deposits. Whereas on the be found in the classic books of Islamic financing side, mudharabah is applied to: jurisprudence. And this is actually the working capital financing and special in- practice of mudaraba done by the Prophet vestment.Whereas Musyarakah, which is and his companions and Muslims after- financing based on a cooperation agree-
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ment between two or more parties for a The financing agreement model particular business, in which each party based on the principle of profit sharing in contributes funds provided that the bene- the form of mudharabah and musyarakah fits and risks will be borne jointly in ac- agreement used is a standard agreement, cordance with the agreement; meaning that the contract has been pre- If in the musharaka the loss is borne pared in advance by the bank. However, by the bank and the customer in accord- in its implementation, banks still provide ance with the percentage of their respec- opportunities for customers to choose or tive participation, then in the mudharabah determine clauses that do not burden the contract the loss arising from the execu- customer, for example in terms of the con- tion of the contract will be borne by the tract or the ratio amount. bank, except if the loss occurs due to dis- In the Mudharabah financing honesty and / or negligence and or viola- agreement and the Musyarakah Financing tion of the customer. In relation to profit Agreement Deed between the Sharia Bank sharing ratio, the mudharabah financing and the Customer there is a clause in the agreement for profit sharing ratio is calcu- guarantee, both in the form of individual lated based on Expected Return Bank for guarantees and material guarantees in the each batch of disbursement, while in the form of collateral, collateral. The guaran- musyarakah agreement the profit sharing tee agreement is an accessoir of the prin- ratio for each is determined by percent- cipal agreement as outlined in the guaran- age.The reason why mudharabah custom- tee agreement deed which is made sepa- ers almost all have a legal entity / business rately from the principal agreement. With entity is because the mudharabah contract the existence of collateral or collateral as is a trust contract that gives one hundred accessoir in the financing agreement percent of the financing to its customers based on profit sharing principles such as because it must be done carefully and mudharabah and musyarakah is to antici- there is certainty of returning customer pate the moral hazard or moral hazard of financing. Every the Legal entity has a the customer that is not consistent with the Articles of Association and / or by laws, agreed contractual contents. In addition, so that it has a clear legal standing with the guarantee is intended to encourage clear business activities which are also customers to comply with the financing contained in the articles of association. agreement, especially regarding repay-
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ment in accordance with the agreed terms, mudharabah and musyarakah agreement is so that the customer (investor) does not in accordance with the provisions of sha- lose the wealth that has been used by the ria. Jurisprudence scholars argue that there bank. For the Bank, public trust is very is no guarantee of guarantee in the important in increasing the competition of mudaraba contract. The reason for the Syariah Banks that are still far behind in prohibition is because the contract is a terms of market share compared to con- mandate contract, besides that the scheme ventional banks. applies between two parties directly, Judging from the prudential banking namely shahib al-maal directly dealing perspective, there is a guarantee in the with mudharib. This scheme is a standard mudharabah and musyarakah financing scheme that can be found in the classic agreement in accordance with the precau- books of Islamic jurisprudence. Mudhara- tionary principle stipulated in Article 23 bah practices carried out by the Prophet of Act Number 21 Year of 2008 concern- and his companions and Muslims after- ing Sharia Banking which emphasizes the wards. In this case, what happens is direct importance of a careful assessment of investment between shahib al-mal (as a character, capability, capital, collateral, surplus unit) and mudarib (as a deficit and business prospects of prospective Fa- unit). In direct financing like this, the role cility Recipient Customers. The precau- of banks as intermediary institutions does tionary principle is important, as said by not exist. Akhmad Mujahidin that the risks that oc- Classical mudharabah like this has cur in banking business in general are the special characteristics, namely that usually risk of non-performing financing or Non- the relationship between shahib al-maal Performing Loans (NPLs) or Non- and mudharib is a personal and direct rela- Performing Financings (NPFs). tionship and is based on mutual trust Factors contributing to the risk of (amanah). While the relationship between bad credit include the use of credit, poor the mudharabah contract currently in- credit usage management, and economic volves three parties. This additional one conditions that affect the domestic busi- party is played by Syariah Banks as an ness climate. When viewed from sharia intermediary institution that brings togeth- compliance (Sharia Compliance), whether er shahib al-maal and mudarib. So there is the application of collateral in the
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an evolution from the concept of direct ry Board is given the task of giving advice financing to indirect financing. and advice to the directors and supervising The principle of compliance with the activities of the bank to comply with sharia principles (sharia compliance) re- the Sharia Principles.16 lated to sharia banking practices is the ob- The Indonesian Ulema Council Au- ligation of submission (compliance) of thority to establish sharia principles is in Syariah Banking in its business activities line with the definition of Shariah Com- to the values of sharia (Islamic law) which pliance according to Adrian Sutedi, that is regulated by the authorized institution.15 operational sharia compliance is compli- The implementation of the principle of ance with the National Sharia Council compliance with sharia is also contained Fatwa because the Fatwa of the National in Article 26 of the Sharia Banking Act Sharia Board is a realization of sharia which stipulates that various forms of sha- principles and rules that must be adhered ria banking business must submit to the to in Syariah Banking. fatwa of sharia principles stipulated by the In the matter of collateral in the Indonesian Ulema Council. The article mudharabah and musyarakah agreement, was re-stated in the Regulation issued by the Indonesian Ulema Council as the au- Bank Indonesia. In addition, the imple- thority for the stipulation of fatwa in the mentation of the Sharia compliance prin- field of sharia which is the reference of ciple is also contained in Article 32 of Act Syariah Banking, in the fatwa of the Na- the Sharia Banking which stipulates that tional Sharia Council of the Indonesian every Syariah Bank and conventional Ulema Council Number 07 / DSN-MUI / commercial bank that has a Sharia Busi- IV / 2000 states that in principle, in fi- ness Unit must have a Sharia Supervisory nancing Mudharabah has no guarantee, Board appointed by the General Meeting but for mudharib not to make a deviation, of Shareholders or a recommendation the bank can ask for guarantees from from the Ulema Council Indonesia. mudarib or third parties. This guarantee Through this article the Sharia Superviso- can only be disbursed if the mudarib is proven to have violated the things agreed
15 Muh. Nasikhin, Rekonstruksi Pengaturan dan Pengawasan Perbankan Syariah dalam Sistem Hukum Perbankan Nasional (Reconstruction of 16 Adrian Sutedi, Perbankan Syariah Tinjauan dan Regulation and Supervision of Sharia Banking in Beberapa Segi Hukum (Sharia Banking, Review the National Banking Legal System), Fatawa Pub- and Some Legal Aspects), Ghalia, Jakarta, 2009, lishing, Semarang, 2017, p. 101 p. 145
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upon in the contract. Similarly, in the Na- tomer and is disbursed after the customer tional Sharia Council Fatwa of the Indo- is declared to have actually committed a nesian Ulema Council Number 08 / DSN- deviation (default, default), the guarantee MUI / 2000 stated in principle, in in the mudharabah and musyarakah fi- musyarakah financing there is no guaran- nancing agreement that has been applied tee, but to avoid occurrence of irregulari- by the Sharia Bank in general is in ac- ties, the bank can request collateral. cordance with the principles of sharia Based on these provisions, the prin- compliance, as stated by the National Sha- ciple of the availability of guarantees is to ria Council of the Indonesian Ulema avoid Customer's irregularities in matters Council above. that have been agreed upon. When viewed In addition, seen from the prob- in the terms of the Financing Agreement lemah theory stated by Imam Asy-Syatibi Act mudaraba and Deed of Musyarakah that the most important benefit (al- Financing Agreement the existence of col- maslahah ad-daruriyyah) is intended to lateral or collateral is not intended to guarantee basic human rights which in- guarantee capital but to guarantee custom- clude: er order in making payments / repay- 1) Rights and freedom of religion (hifz ments. Disbursement of collateral or col- ad-din); lateral items at a Sharia Bank is usually 2) Physical or mental salvation (hifz an- carried out if the Customer has broken a nafs); contract, including side streaming of capi- 3) Family safety or descent (hifz an- tal usage that is not in accordance with the nasl); financing objectives approved by the 4) Safety of property or private property Bank. (hifz al-mal) and Associated with the disbursement of 5) Safety of reason or freedom of collateral items, as added by the speaker thought (hifz al-‘aql).17 Firmansyah, that the disbursement or exe- cution of collateral goods is carried out as With the guarantee as an effort to the last alternative if the Customer can no avoid irregularities from customers who longer cooperate to resolve financing use financing facilities that result in loss problems. So as long as there is a guaran- investor investor customers is a form of tee to avoid any irregularities in the Cus- 17 Lihat As-Syatibi, Al-Muwafaqat fi Usu al- Ahkam , Dar al-Fikr, Beirut, 1341 H, II:3, p. 4.
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the realization of assets or personal prop- ciple have been determined through the erty (hifz al-mal) and in terms of contract National Sharia Council Fatwa of the In- theory, a guarantee in order to prevent donesian Ulema Council, however in the such deviations, then in accordance with context of the rule of law where legisla- the principle of ihtiyat or caution. Where- tion has a very large role, the position of as in the contract theory perspective it is the Fatwa of the National Sharia Council stated that a contract has a principle or is related to the ability to apply collateral principle that must be its basis. As men- in the mudharabah and musyarakah fi- tioned in the Compilation of Sharia Eco- nancing agreements that have been ab- nomic Law, it is stated that there is a prin- sorbed into the Bank Indonesia Regulation ciple of jurisprudence / prudence, which is as described above, thus having binding intended so that each contract is carried legal force can be guided at least by the out with careful consideration and carried Bank and the Customer in banking trans- out appropriately and carefully. actions. Thus the existence of the Fatwa of Judging from the legal function as a the Indonesian Ulema Council which has means of renewal in community develop- been confirmed by the Bank Indonesia ment, despite the provisions in Act Num- Regulation, in terms of the theory of legal ber 21 of 2008 concerning Sharia Bank- certainty, has constructive value for the ing, it has not specifically regulated the stability and trust of the public in the law of material security in accordance banking business. with the characteristics of each contract / financing product, but in general the re- Binding of Guaranteed Goods in Fi- quirements for for banks to have specific nancing Based on Profit Sharing Prin- beliefs including the need for collateral ciples on Syariah Banking goods or collateral can be used as regula- The guarantee agreement is an addi- tive instruments that regulate and direct tional or follow-up agreement. This means the activities of Syariah Banking as one of that the existence of a guarantee agree- the important development factors. ment cannot be separated from the princi- In the practice of Sharia Banking, pal agreement. The principal agreement even though all arrangements regarding that precedes the birth of a guarantee guarantee agreements in the Contract of agreement is generally in the form of a Funding based on the profit sharing prin- credit agreement, loan-borrowing agree-
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ment or debt-receivable or financing of the debtor's assets so that it gives power agreement. In the Mudharabah financing to the creditor in a preferred position. agreement deed, there is a clause in the The material guarantee which is an guarantee, both individual guarantees and accessoir agreement in the mudharabah material guarantees or collateral. In and musyarakah financing agreement has mudharabah agreement, collateral or col- been bound by the guarantee binding insti- lateral in the form of: tution in the form of a pawn for deposits, a) Personal guarantee (personal guaran- fiduciary guarantee for customer receiva- tee); bles, mortgage for collateral in the form of b) Customer Receivables; land and objects on it. Guarantee binding c) Deposits and institutions have provided protection and d) Land and Buildings above it. legal protection to Shahibul Mal or the Bank because the guarantee binding insti- In the Deed of Agreement on tution has the characteristics or character- Musyarakah Financing in general it is istics: droit de suite, droit de preference stated that: Guaranteed Goods are: Land and cannot be divided, thus providing a and objects above the land. Categorically, guarantee of returning financing from the the guarantee in the contract consists of Customer when financing problems occur. two types, namely individual guarantees Each guarantee and collateral item is (persoonlijke zekerheid) and material stated in written form and made before a guarantees (zakerlijke zekerheid). With Notary / Land Land Titles Registrar in the the existence of individual guarantees, for form of an Authentic Deed. Each guaran- example: between the management of the tee or collateral item is bound in accord- Baitul Maal wat Tanwil Cooperative as a ance with the provisions of the legislation. Customer and the Bank in the Mudhara- Therefore, in terms of the precautionary bah Financing Agreement it will create principle, the application of this special individual rights and create a special legal material guarantee provides a greater relationship between the Creditors and the sense of security to the creditor or bank, person who guarantees the repayment of so that when the customer defaults, the Debtor debts. Whereas material security is Bank receives a replacement from the sale an absolute right of a certain object as part (auction) of the collateral.
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From the entire guarantee agreement Rahn tasjili expressly provides the con- in the financing agreement based on the cept of collateral which is a guarantee in principle of profit sharing, the collateral the form of goods on debt, but the collat- binding institution is provided by positive eral item (marhun) remains in the control legal provisions. Guarantee binding insti- (utilization) of rahn and the proof of own- tutions such as Rahn and Kafalah are ex- ership is submitted to murtahin. This prac- plicitly not used as a legal basis for guar- tice is more like fiduciary. In addition to anteeing the collateral in the mudharabah rahn tasjili, according to Rahn hiyazi, it is and musyarakah agreement, even though very similar to the concept of pawning in substantially there is an equality between both customary law and positive law. the guarantee agreement which is intro- The use of existing collateral bind- duced by the provisions of Islamic law ing institutions is because there are no and the existing collateral guarantee insti- rules that specifically regulate the binding tutions. of sharia guarantees specifically. In addi- `Some scholars from the Maliki doc- tion there is a requirement from the Nota- trine also allow third parties to provide ry / Land Titles Registrar who becomes a guarantees for mudaraba. This guarantee partner of the Sharia Bank, ie must have is called kafalah Related to Kafalah,18 the attended training / courses on Islamic eco- National Sharia Council of the Indonesian nomics. This statement is in line with the Ulema Council has issued Fatwa Number proposal of Gatoto Supramono, that for 11 / DSN-MUI / IV / 2000, that: In order the interests of Syariah Banks it is neces- to run its business, a person often requires sary to support the existence of Sharia No- guarantees from other parties through a taries whose work is to make Sharia kafalah contract, which is a guarantee giv- Deeds whose Actual contents relate to en by the guarantor (kafiil) to a third party Sharia Principles, in order to be in line to fulfill the obligations of the second par- with the bank's principles.19 ty or that is borne (makfuul 'anhu, ashil); The principles of sharia in the guar- Related to the binding of material antee agreement, especially those relating guarantees, the National Sharia Council to financing agreements based on profit Fatwa of the Indonesian Ulema Council sharing principles, require special on March 6, 2008 concerning rahn tasjili. knowledge, accuracy and even separate
18 Muhammad Syafii Antonio, Op. Cit., p. 177 19 Gatot Supramono, Op. Cit., p. 137
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regulations because the conventional compliance, various provisions in the guarantee binding institutions used as guarantee regulation have not accommo- binding guarantees are not specific to the dated sharia principles. From the aspect of aspects of guarantee in mudharabah and legal theory of development, in order to musyarakah financing, but on financing. utilize the law as an instrument of eco- credit or debts, because mudharabah is not nomic development, more specific ar- a Debt Agreement, it cannot be bound by rangements are needed regarding the ap- Article 1131 Code of Civil law. plication of a material guarantee agree- Sharia agreements and sharia guar- ment law that accommodates sharia prin- antees are two legal entities that cannot be ciples as accommodated in the Principal separated. The existence of sharia guaran- Agreement. tees only arises after the sharia agreement. According to the Shariah com- This is if analogous to the concept of civil plience Fatwa, the Indonesian Ulema law, the sharia agreement is a follow-up Council on guarantees does not discuss agreement (accessoir), while the sharia the arrangement of its binding institutions agreement is the principal agreement. This as a whole, as well as the Syariah Banking means that the principle of law that under- Act, specifically does not regulate the lies the sharia agreement, mutatis mutan- guarantee binding institutions on Islamic dis can also be treated as a Principle of finance. Although some of the ulama's sharia guarantee law.20 opinions related to individual guarantees From the precautionary principle and material guarantees enable the bind- with the use of existing guarantee institu- ing of guarantees that are conceptually the tions, it can provide certainty regarding same as guarantee institutions in positive the acquisition of refinancing from cus- law, so too the Indonesian Ulema Council tomers to banks because the guarantee in- has issued a fatwa regarding rahn collat- stitution specifically binds objects specifi- eral binding institutions that are conceptu- cally to the related execution institutions. ally the same as pawning and fiduciary, Nonetheless, from the aspect of sharia but the issue of collateral also involves various institutions, procedures and tech-
20 Noor Hafidzah, Kajian Prinsip Hukum Jaminan nical implementation of collateral execu- Syariah dalam Kerangka Sistem Hukum syariah (Study Of Sharia Collateral Law Principle in The tion, so that utilizing the various collateral System Sharia Law), download. Portalgaruda.org akses 6 September 2017 binding institutions is rational and pro-
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vides a safer shield for banks in resolving of collateral is the last step taken by the credit risk or financing risk due to default Bank if the financing restructuring efforts by the Customer. Because the guarantee carried out by the Bank are unsuccess- binding institution is specifically not indi- ful.Basically steps that can be taken to cated in the sharia agreement, but for the save non-performing financing in the form debt-receivable agreement in the general of Financing Restructuring are based on context of the creditor-debtor relationship, Bank Indonesia Regulation Number 10/18 the sharia contract has different forms and / PBI / 2008 concerning Financing Re- principles where the parties to the transac- structuring for Sharia Banks and Sharia tion are partners with each other , then the Business Units through rescheduling, re- use of the binding institution is entirely in requirements ( reconditioning) and re- accordance with the principle of compli- structuring. ance with sharia (sharia compliance). In Non-performing financing is financ- the paradigm of development law, it is ing that has a quality that is classified as necessary to establish a guarantee legal substandard, doubtful and loss. Based on regulation as an inseparable part of the the provisions of Article 9 of Bank Indo- sharia agreement or contract so that the nesia Regulation Number 8/21 / PBI / role and role of Syariah Banking as a pil- 2006 concerning the quality of assets of lar of economic development can maxi- commercial banks conducting business mally realize the prosperity of the people activities based on Sharia principles as as aspired. amended by Bank Indonesia Regulation Number 9/9 / PBI / 2007 and Bank Indo- 3. Urgency of collateral in the settle- nesia Regulation Number 10/24 PBI / ment of financing agreements based 2008, payment quality is assessed based on the Principle for Problematic re- on aspects: sults in Syariah Banking a) Business prospect; Referring to the deed of Mudhara- b) Customer performance; bah and Musyarakah financing agree- c) Ability to pay / ability to submit or- ments, anticipation of the problematic fi- dered items. nancing has been carried out by binding On the basis of the 3 (three) aspects guarantees and collateral in both contracts. mentioned above, the quality of Financing However, the disbursement or execution
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in practice is determined to be 5 (five) c) Classification of Quality of Ijarah or groups, namely: Ijarah Muntahiyah bi Tamlik a) Current, also called Group I (one); d) Salam Quality Classification b) In Special Attention, also called Mudharabah and Musyarakah fi- Group II (two); nancing criteria are as follows: c) Substandard, also called Group III a) Current: Payment of principal in- (three); stallments on time, and or IDR equal d) Doubtful, also called Group IV (four), to or more than 80%; and b) In Special Caution : There are arrears e) Loss, also called group V (five) in principal installments of up to 90 days and / or IDR equal to or more The criteria for the components of than 80%; the aspect of determining Financing Qual- c) Substandard : There are arrears in fi- ity classification are set out in Appendix I nancing principal installments that of Bank Indonesia Circular Number: 8/22 have exceeded 90 days and or IDR / DPBS dated October 18, 2006 concern- above 30% PP up to 80% PP (30% PP ing Assessment of Product Assets of