International Journal of Civil Engineering and Technology (IJCIET) Volume 10, Issue 05, May 2019, pp. 885-897. Article ID: IJCIET_10_05_089 Available online at http://iaeme.com/Home/issue/IJCIET?Volume=10&Issue=5 ISSN Print: 0976-6308 and ISSN Online: 0976-6316 © IAEME Publication

RESTRUCTURAL JUSTICE-BASED LEGAL PROTECTION FOR BANKRUPT DEBTORS IN SETTLING BANKRUPTCY DISPUTES

Serlika Aprita Faculty of Law, Muhammadiyah University,

Joni Emirzon Faculty of Law, Sriwijaya University, Indonesia

Muhammad Syaifuddin Faculty of Law,Sriwijaya University, Indonesia

ABSTRACT The requirements to declare bankrupt debtors as stipulated in Article 2 paragraph (1) of Law, Number 37 of 2004, concerning Bankruptcy and Delay of Debt Payment Obligations do not provide further understanding regarding the comparison of debtor assets and total debt that is due and does not regulate the existence of debt conditions unable to pay or insolvency as a condition that debtors can be bankrupt so Indonesian Bankruptcy Law tends to protect the interests of creditors who want to access all debtor property and close opportunities for debtors who are still solvent but have financial difficulties to run their business because they are decided to go bankrupt curator. The other side of bankruptcy arrangements is based on various principles, one of the principles that become a reference is the principle of business continuity. This principle states that a decision on bankruptcy must consider the continuity of the company or business entity that can still be maintained. These two different side rules give rise to what is known as inclusion. One side provides flexibility for bankruptcy applications, the other side provides leeway to not easily declare the debtor to be bankrupt. To explain these regulatory problems, the researcher conducted prescriptive normative legal research by analyzing Law Number 37 of 2004 concerning Bankruptcy and Delaying Obligations of Debt Payments. The restructuring justice-based business continuity principles should be described (concretized) on positive legal norms in legal instruments testing the ability of debtors to pay debts (insolvency test) in the context of legal protection for debtors and settlement of disputes in commercial courts is reformulation of insolvency test regulations that need to be amended in the provisions of Article 2 paragraph (1) of Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations which regulates the requirement to declare bankruptcy debtors in the

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framework of improving the Bankruptcy Law in the future, therefore the Bankruptcy Law should regulate matters as follows: (1) An addition of requirement for the creditor numbers with falling debt, there are two or more creditors' debts whose debts have matured and can be billed; (2) An additions of the minimum amount of debt that can be requested; (3 ) An application of capability testing debtor to settle the debt (Insolvency Test) in bankruptcy; (4) The broad definition of debt in the Bankruptcy Law requires complex proofs; (5) An appointment of expert consultants team; (6) An authority of the Commercial Court Judge in the insolvency test and (7) The need to reorganize the increasing of the prospective company value. Keywords: Delaying Obligations of Debt Payment, Bankruptcy Legal Protection, Insolvency Tests, Business Continuity Principles, and Bankruptcy Cite this Article: Serlika Aprita, Joni Emirzon and Muhammad Syaifuddin, Restructural Justice-Based Legal Protection for Bankrupt Debtors in Settling Bankruptcy Disputes, International Journal of Civil Engineering and Technology, 10(5), 2019, pp. 885-897. http://iaeme.com/Home/issue/IJCIET?Volume=10&Issue=5

1. INTRODUCTION The Indonesia economic development essentially runs very well, especially with the gradual and continuous economic development program of the government that has been prepared in the long term development period of 25 years. This is presented by the development of macro and micro economies that have increased rapidly along with the growth of small or large business units in the world of trade and the Indonesian economy. This phenomenon has resulted in high mobility of human resources and business resources, resulting in capital turnover and wealth that has expanded from time to time in the economy world. (1) Before 1997, the economic development in Indonesia was praised many parties about the achievements of Indonesia's economic development as one of the High Performing Asian Economy Countries which had an amazing economic performance, in fact, it was considered a miracle. However, the economic crisis in July 1997 that began with the rupiah inflation made the miracles vanished and stumbled in a prolonged economic crisis that has yet to recover.(2) The economic crisis in 1997 caused a pessimism about the prosperity of the Indonesian economy in the future. This condition has devastated the economy joints. The enormous difficulty of the national economy lies mainly on the ability to develop the entrepreneurship aspect. The entrepreneurship is the most suffer aspects and they get the impact of economic crisis, where Indonesian entrepreneurs cannot afford to settle their debts (in foreign exchange) toward the foreign creditors and some even stop paying their debts that are due. (3) One brief way taken by creditors to obtain payments (even if only partially) when the debtor is in a state of stop paying is through a bankruptcy process. (4) The solution of accounts receivable debt serves to filter the entrepreneurship of inefficient companies. This is, as explained by the Minister of Justice, Muladi, that the debt receivable settlement process is expected to be carried out quickly, fairly, transparently, efficiently, effectively and professionally, so that the national business can operate normally and immediately, and economic activities will resume in turn. (5) A company in the framework of developing its business may have debt. The giving debt by creditors to debtors is a common practice in business interactions. The repayment of debt is predicted from the company's revenue obtained from business activities. Before this income is used to pay off the company's debt, the income is first used to cover the company's needs in

http://iaeme.com/Home/journal/IJCIET 886 [email protected] Restructural Justice-Based Legal Protection for Bankrupt Debtors in Settling Bankruptcy Disputes order to fertilize the company's reserves and cover company costs. The main source of debt repayment from the company's income as mentioned above in the banking world is called the first way out. Besides, the alternative repayment sources are the income of collateral sale or liquidation of company assets because the company is declared bankrupt, and it also comes from guarantee assets (guarantor or borg) and collateral items belonging to third parties and alternative sources of debt repayment are called second-way outs. (6) Some companies that have debt are not a bad thing, as long as the company can still repay. The Companies are usually referred to as solvable companies, meaning companies that are able to pay their debts. Conversely, if a company that is unable to pay its debts is called insolvable, it means that it cannot afford to pay. Such a situation arises many violations of the obligation to repay debt to its creditors, this is where the role of Bankruptcy Law is needed. (7) A bankruptcy law in Indonesia is considered not yet able to provide legal certainty. The bankruptcy law is in fact only a dead letter. (8) In essence, it must also be acknowledged that the problems or procedural constraints that arise in the application of the Bankruptcy Law have been around for a long time since 1905 and are contained and regulated in the previous Bankruptcy Regulations, namely Verordening Faillisements S. 1905 Number 217 jo S. 1906 Number 348. (9) In its development, Bankruptcy Law in theory and practice did not experience significant progress and this was felt until 1998 and replaced with a new one, which on October 18, 2004, passed Law Number 37 of 2004 concerning Bankruptcy and Delaying Obligations of Debt Payments ( hereinafter referred to as UUK and PKPU) have a broader scope, this is necessary because of the development and legal needs in the community while the provisions that have been valid have not been sufficient as a legal means to solve the problem of debt payable fairly, quickly, openly and effectively.(10) The main material for the changes in UUK and PKPU is one concerning the definition of debt as stipulated in the provisions of Article 1 paragraph 6 UUK and PKPU and concerning the terms and procedures for bankruptcy applications and requests for postponing debt payment obligations including the provision of a definite time frame for withdrawal decision of bankruptcy statement and / or delaying of obligation to pay debt. (11) The extent of debt definition has implications for the dimensions of bankruptcy law in general, this is as stipulated in the provisions of Article 1 paragraph 6 of Law and PKPU which interpret debt as follows: “Obligations that are stated or can be stated in the amount of money both in Indonesian currency and foreign currency, either directly or in the future or contingent, which arise due to agreements or laws and which must be fulfilled by the Debtor and if not fulfilled gives the creditor the right to obtain fulfillment from the debtor's assets” The purpose of the assertion in bankruptcy is that debt that is not paid in full is to ensure that the debt has been paid but has not paid off the debt, the debt can be used as the basis for filing bankruptcy (12) In the Bankruptcy Act the expansion of the debt meaning is not followed by restrictions on the value of debt as a condition for filing for bankruptcy applications, meaning that even the smallest bill arising from the relationship of debts and other civil relations can result in the obligation to pay money. Commerce and Judges of the Commercial Court will grant a bankruptcy petition if the fulfilment of the elements as stipulated in the provisions of Article 2 paragraph 1 of the Act and PKPU reads as follows:(13) “Debtors who have two or more creditors and do not pay off at least one debt that has been due and can be billed, are declared bankrupt with a court decision, both on their own request and on the request of one or more creditors”

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The requirement to declare a bankrupt debtor, as stipulated in the provisions of Article 2 paragraph 1 of the Act and PKPU, is none of the provisions that require debtors to be insolvency, this is certainly contrary to the universal philosophy of the Bankruptcy Law which is to provide a solution debtor and creditor when the debtor is in a state unable to pay his debts. The absence of testing the debtor's ability to pay debts (Insolvency Test) shows that the Bankruptcy Act tends to protect the interests of creditors.(14) The practice of bankruptcy in the Bankruptcy Law has caused many problems and juridical debates, one of the reasons is the many unclear arrangements that provide opportunities for various interpretations which result in legal uncertainty for justice seekers. (15) The inability to pay debts (insolvency) is a very important stage in bankruptcy because at this stage the debtor fate is determined whether the debtor's assets will be divided to cover debts or debts that will arise in the future when the receipt of a peace plan or debt restructuring. The arrangement of insolvency basically has been regulated in the legislation of the Dutch colonial era up to the national law legislation. The purpose of Bankruptcy Law as a public confiscation in the Verification Order is not followed by a strict arrangement towards that goal. Uncertain arrangements in Verordening Faillisements influence their enforcement. For example, the requirement for bankruptcy statements in the Verordening Agreement is proven to be "in the sum" of the conditions that indicate the debtor "has stopped paying". However, in the provisions of Faillisements Verordening there is no official explanation of the notion of "in sum" and "has stopped paying". The definition of "stop paying" is not regulated in detail in the Verordening Faillisation, this results in two interpretations, these are the debtor is no longer able to pay or the debtor does not (although able) pay. (16) The Indonesian monetary crisis in mid-1997 prompted the birth of Government Regulation in Lieu of Law Number 1 of 1998 concerning the Amendments of the Bankruptcy Law. The Government Regulation in lieu of Law Number 1 of 1998 concerning the Amendments of the Bankruptcy Law was approved by the House of Representatives and passed into Law Number 4 of 1998 concerning Amendments of the Bankruptcy Law on 9 September 1998. The objectives of ratification of the policy functions only to protect the interests of foreign creditors, this can clearly be seen in Article 1 paragraph 1 of Act Number 4 of 1998 which does not consider whether the debtor is insolvency or insolvent to be declared bankrupt. In the course of Law No. 4 of 1998, it did not provide protection against solvent debtors. Replacement of Verordening Fallacies with Law Number 4 of 1998 apparently has not fulfilled the development and legal needs of the community. Furthermore, UUK and PKPU replaced the previous Bankruptcy Act. Similar to the enforcement of Law Number 4 of 1998, the absence of legal protection for solvent debtors was also rediscovered in UUK and PKPU. The Central Commercial Court declares bankruptcy of a company that is solvent, namely DI L.td, this is one of the absence philosophy result in the Bankruptcy Law so that the judge only decides the bankrupt debtor only bases himself on the condition of two debts and one of them is due. Such conditions lead to injustice if the small number of bills then a large company with an asset value of more than ten times the credit value of its creditors must be declared bankrupt with the consequence that all management of the debtor's corporate assets is transferred to the curator and the continuity of the company will be determined by settlement the bankruptcy process means that if there is peace between the debtor and the creditors and peace is passed, the future of the company will return to normal, but if peace is rejected and proceed to the execution stage then it can be ascertained that the debtor company is at the end of which the debtor is declared bankrupt followed by general seizures carried out by the authorities followed by equal distribution of these matters as strengthened by the opinion of S. Sastrawidjaja. (17)

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Based on Article 2 paragraph 1 UUK and PKPU, it shows that there are no provisions requiring debtors in the state of insolvency. Which means that UUK and PKPU do not require a minimum amount of certain debt or require an insolvency condition where the assets of the debtor (assets) are far smaller than the debts held (liabilities) which are usually measured through the Insolvency Test. The economic crisis experienced by Indonesia since the entry into force of the Financial Account should have made the Indonesian government realize that insolvency is needed so that debtors are not easily declared bankrupt. This certainly protects the interests of creditors by not implementing a test of the debtor's ability to pay debts (Insolvency Test) resulting in Indonesian companies legally bankrupt even though Indonesia's current economic conditions if the insolvency requirements are implemented will make it difficult for debtors to be declared bankrupt. (18) The concept of continuity principle as the application of the business continuity principle based on the value of restructuring justice in the context of legal protection for bankrupt debtors in resolving disputes in the commercial court that has not yet materialized must be considered due to the value of justice and the value of legal certainty for debtors.(19) A legal protection for debtors in connection with the absence of testing the debtor's ability to pay debts (Insolvency Test) is an effort to realize the business continuity principle which is one of the principles regulated by Law and PKPU, where prospective debtors are allowed to carry out their business. To see the prospective business debtor, one of those can be seen from the financial situation. This shows that at present the principle of business continuity in Bankruptcy Laws in Indonesia is mentioned as the basis of Indonesia's Bankruptcy Law arrangements. However, the Bankruptcy Act did not mention at all about examining the financial condition of the debtor as a condition for the imposition of a bankruptcy decision on the debtor as confirmed by the opinion of Fennika Kristianto. (20) This condition shows that the legal protection for debtors has not reached a balance principle for the two elements (debtors and creditors) as adopted by UUK and PKPU, even though the concept of balanced legal protection for debtors and creditors in the Bankruptcy Act is in line with the concept of balanced interest protection on the basis of the Republic of Indonesia, namely Pancasila.

2. METHODS The type of the research in this paper was prescriptive normative legal research, which according to Peter Mahmud Marzuki was a legal research that aims to study the purpose of law, values of justice, validity of legal rules, legal concepts, and legal norms. The dissertation research according to Peter Mahmud Marzuki was conducted to produce new arguments, theories, or concepts as prescriptions in solving problems faced. The argument was applied to provide prescriptions about whether or not according to law against facts or legal events from the results of research. This research was used on the basis of the consideration that the starting point used is the analysis of the Indonesian Bankruptcy Act is currently incompatible with the philosophical bankruptcy law, namely to protect the interests of debtors, especially the requirements as stipulated in the provisions of Article 2 paragraph (1) PKPU regarding the requirements for a debtor to be declared bankrupt by the Commercial Court. Based on the provisions in the article it is not regulated and the difference between the debtor's ability to pay debts results in many debtors who are still solvent but can be bankrupt, whereas UUK and PKPU adhere to the principle of business continuity which provides an opportunity for solvent debtors to restructure their company.

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3. THE PRINCIPLE OF BUSINESS CONTINUITY BASED ON THE VALUE OF RESTRUCTURAL JUSTICE SHOULD BE DESCRIBED (DICTONIZED) IN POSITIVE LEGAL NORMS ON THE INSTRUMENT FOR TESTING THE DEBTOR'S ABILITY TO PAY DEBT (INSOLVENCY TEST) IN THE CONTEXT OF LEGAL PROTECTION AND SETTLEMENT OF BANKRUPTCY DISPUTES IN COMMERCIAL COURTS The arrangement of business continuity principles in Bankruptcy Law also has an important role in providing legal protection for debtors who have the ability to conduct corporate restructuring as an effort to realize the principle of justice for all parties. (21) A restructuring is the provision of opportunities to debtors who do not have the ability to pay debts but the debtor company has great potential to be able to carry out its business activities so that the debtor is able to repay the debt to its creditors. Before the restructuring process is carried out, it starts with a feasibility study which aims to determine whether the debtor's debt is feasible or not for the restructuring. The application of the business continuity principle based on the value of restructuring justice in the context of legal protection for bankrupt debtors in resolving disputes in the commercial court that has not yet been realized must be considered due to the value of justice and the value of legal certainty for debtors. The Bankruptcy Law in the future should regulate the insolvency test as an effort to realize the principle of justice as the concept of justice principle regulated in UUK and PKPU in its explanation states that the existence of this Law is based on a number of principles in relation to enacting the insolvency test provisions for legislators Bankruptcy Acts in the future, namely the principle of justice. The principle of justice means that provisions regarding bankruptcy can fulfil a sense of justice for interested parties. This principle of justice is to prevent the arbitrariness of the collector who seeks payment for each bill against the debtor regardless of other creditors. Fair here means that a decision and action are based on the norms that apply according to the rule of law, while still taking into account the interests of the community, and the validity of having the same position for all parties. (22) In order to improve the Bankruptcy Act in the future, the provisions concerning the insolvency test have been regulated as an effort to realize the principle of justice and in connection with the philosophical function of the Bankruptcy Law to protect the interests of debtors in Bankruptcy Law in Indonesia based on procedurally regulated provisions in the Laws invitation and provide protection and safeguard human rights in this case the debtor. In the case of WRS Indonesia v. Rodney Alexander Bothwell, L.td, the judge ruled that in principle the bankruptcy law aims to create a balance of interests between the interests of the debtor, the creditor and the public interest. The interests of the debtor, namely the desire to continue his business without the need to be bankrupt and at the same time to pay his debt. The interests of creditors are protected by hastening the debts given, while the interests associated with the general public are the maintenance of commerce in people's lives.

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4. THE NORMATIVE CONCRETIZATION OF THE APPLICATION OF BUSINESS CONTINUITY PRINCIPLES IN THE FRAMEWORK OF THE DEBTOR PROTECTION LEGAL SYSTEM IN INDONESIA. Based on the theory substances of legal protection Fitzergarld and Salmond, the rule of law can protect interests, including the right of debtors to obtain compensation due to the actions of creditors to get repayment of debt quickly. (23) Furthermore, this legal protection theory was elaborated to form the rule of law through Roger Cotterell's legal system theory which understood the legal system as a unit which in its formation process there should not be contradictions both vertically and horizontally in forming law as a whole needed internal relations that consistent between the elements in the legal system (norms, principles, concepts, etc.) (24) Then, there are also external relations that are consistent and they can predict between what is in the system and those outside the system so that the normative weaknesses concretize the legal rules in national positive legal regulations, especially at the level of implementing regulations which substantively protect the rights of debtors for arbitrary acts of creditors In obtaining debt repayment, it is necessary for normative strengthening which juridically refers to UUK and PKPU. A conducive climate is very necessary for debtors to claim rights if they suffer losses due to arbitrary actions from creditors. This means that in demanding these rights, the debtor receives positive support from the executive institutions and other relevant state institutions. The running of the court is in accordance with the expectations of the justice seekers, the government has the duty and responsibility of directing the community, debtors of creditors and government officials to obey the law for the sake of justice and public welfare. The regulation of the legal system of debtor protection in the field of legal protection for debtors also follows Lawrance Friedman's legal system theory. (25) The legal system theory consists of structure, substance and legal culture based on the Pancasila ideals and the constitutional foundation of the 1945 Republic of Indonesia which contains the nation's philosophy, legal ideals, and guidance in future law enforcement in Indonesia. The violations of debtor's rights in connection with the lack of testing of the debtor's ability to pay debts (Insolvency Test) is a major problem that must be solved immediately. The bankruptcy bill in the future should provide better legal protection for debtors. Legal protection against debtors is also a state's obligation to benefit the welfare of the debtor's life by helping the debtor continue its business, considering the number of interested parties in the debtor company. Creditors tend not to pay attention to the rights of debtors and tend to take advantage of the weaknesses of the debtor by asking them to pay off debt payments quickly. The effort to accommodate the interests of the debtor through the concretization of the principle is the absolute responsibility of creditors for actions that harm the debtor in connection with the lack of testing of the debtor's ability to pay debts (insolvency test) that must conform to philosophical values with values of justice and truth in accordance with the prevailing cultural values in the community and juridical values in accordance with applicable laws in Indonesia. In line with the normative idea of the legal protection arrangements for debtors in the Law of the Republic of Indonesia Number 37 of 2004 has a correlation with the concept of the state of Pancasila welfare law in the 1945 Constitution of the Republic of Indonesia. The Pancasila welfare law was conceptualized in the Republic of Indonesia Constitution Indonesia 1945 is a country that was founded and organized based on the Pancasila as the state ideology of the 1945 Constitution of the Republic of Indonesia as a state constitution outlined in various legal regulations and policy regulations that are formally democratically formed and materially

http://iaeme.com/Home/journal/IJCIET 891 [email protected] Serlika Aprita, Joni Emirzon and Muhammad Syaifuddin guarantee certainty, justice and benefit of law aimed at realizing well-being in the broadest sense for as many Indonesian people as the Almighty God. Along with the function of the state as the organizer of public welfare, in the effort to realize legal protection for debtors, the government plays a central role. The government must be able to strive for the protection of the interests of the debtor properly through the creation of a favorable conducive climate, the fulfilment of the rights of the debtor through the establishment of good legislation and implementing these regulations as well as law enforcement functions. Furthermore, the role of the government is to control and supervise the formation of laws and regulations, where although there are many regulations regarding legal protection for debtors, the control over the implementation of legislation is still very lacking. The government must realize the protection of the interests of the debtor properly through making good regulations and implementing these regulations as well as law enforcement functions. In Indonesian bankruptcy law, it needs to be repaired and refined. These refinements and improvements need to be carried out to create a bankruptcy law that guarantees justice, legal certainty, effective, fast and provides balanced protection for debtors and creditors and guarantees the continuity of prospective debtor business. Law enforcement in the field of debtor protection, one of the alternatives is to include the principle of the creditor's absolute responsibility for the conduct of creditors which harms the interests of debtors in UUK and PKPU, especially in the Article which regulates the debtor's ability to pay debts (insolvency test) to prove that the debtor is truly insolvent in terms of finance so that the debtor's bankruptcy is in accordance with the philosophy of bankruptcy law. The importance of testing the debtor's ability to pay debts (insolvency test) is carried out so as not to cause differences in interpretation in the decisions of judges which ultimately lead to legal uncertainty. Furthermore, it is necessary to compile a company reorganization law, because the bankruptcy law that has been in effect so far is more likely towards the liquidation of the company than the restructuring of the company to concretize its normative constituency. It is recommended that UUK and PKPU determine in terms of bankruptcy the debtor's insolvency requirements in the event that the debtor requests or is filed for bankruptcy by one or more creditors. Because the principle of insolvency is not applied by UUK and PKPU, the authors suggest that bankruptcy requirements according to Article 2 paragraph 1 of the Law and PKPU be amended to adhere to the principle of insolvency. The implicit concretization of the principle of the creditor's responsibility for the loss of the debtor in connection with the actions of creditors who wish to obtain debt repayments from the debtor quickly and in the absence of testing the debtor's ability to pay debts (insolvency test) results in indistinguishable debtors paying debts or debtors who don't want to pay debts, so that many debtors whose companies are still prospective but unable to pay their debts must be declared bankrupt, this condition as stipulated in Article 2 paragraph 1 UUUK and PKPU, should be changed as follows: “The debtors who have two or more concurrent creditors, and have good debt to all of their creditors, to all concurrent creditors, preferred creditors and creditors with privileges whose value exceeds the liquidation value of all of their existing assets on the date the bankrupt application is registered in court, both tangible and intangible assets can be declared bankrupt by a court authorized to give a bankrupt decision either on its own application or at the request of a concurrent creditor or at the request of the parties specified in this law.”

4.1. Explanation Article 2 paragraph 1 UUK and PKPU requires that only the debtor whose financial condition has been insolvent is the value of all debtor's debts to all of his creditors without discriminating

http://iaeme.com/Home/journal/IJCIET 892 [email protected] Restructural Justice-Based Legal Protection for Bankrupt Debtors in Settling Bankruptcy Disputes on the type of creditor namely concurrent creditor, preferential creditor and creditor with privileges exceeding the liquidation value of all his assets . The value of assets is valued according to the value of liquidation, namely the value that is feasible and can be quickly sold if the assets must be sold or liquidated because the debtor is declared bankrupt by the court, not assessed according to market prices. Liquidation value is lower than market value because even if the assets can be valued according to market prices, it is difficult or even impossible to and sell these assets by reaching their market prices. Market value is only a threat to determine the value of liquidation. The value of these assets is the value of all debtor assets that have existed on the date the bankrupt application was registered in the court. What is meant by "parties specified in this law" is the prosecutor's office as a bankruptcy applicant for the public interest and financial service authority who filed bankruptcy against the debtor in the form of financial service institutions that file bankruptcy against debtors in the form of financial institutions and parties or other parties specified in this law. Indonesian bankruptcy law through UUK and PKPU can be said cannot afford to pay their debts, but debtor companies are still prospective to continue. In UUK and PKPU also not mentioned in more detail about the conditions in which the debtor gets legal protection in connection with the requirement to declare bankruptcy debtors based solely on the provisions of Article 2 paragraph (1) UUK and PKPU, there is no form of legal protection for debtors if there is a fact that the debtor is still insolvent. In addition, the implementation of bankruptcy law in Indonesia through UUK and PKPU is also not regulated further in implementing regulations so that in each process of the examination at the trial and implementation, it only refers to the Law and PKPU. Furthermore, for the long term in the future to complete the UUK and PKPU arrangements, it is better to make an Implementation Regulation, for example, Government Regulation to explain further about testing the debtor's ability to pay debts (Insolvency Test). Further regulation through Government Regulations will save time and costs more than having to revise the Law and PKPU or it's replacement law because the initiative for formation and discussion is on the internal side of the government, which in the long run requires discussion in the context of revising or replacement of a law. In accordance with the normative idea of legal protection arrangements for bankrupt debtors as stipulated in UUK and PKPU as umbrella laws in the area of bankruptcy law is to protect the interests of bankrupt debtors due to the absence of testing of debtors' ability to pay debts (Insolvency Test) which results in easy debtors declared bankrupt only by basing on the provisions of Article 2 paragraph (1) UUK and PKPU. Legal protection for bankrupt debtors refers to the whole philosophy of Indonesian human development based on Pancasila as the philosophy of the Indonesian Nation. The absence of a special law and implicitly contained legal protection for bankrupt debtors in UUK and PKPU, while the effect of the lack of testing of debtors' ability to pay debts (Insolvency Test) to the continuity of business debtors who still have prospects to be saved but unable to pay off debts debtor debts will be very detrimental to the debtor and further weaken the position of the debtor. For this reason, it is necessary to improve the articles in the Law on Judicial Review and PKPU, especially Article 2 paragraph (1) Law and PKPU. In the long term, it is necessary to establish a special law regarding the mechanism for testing debtors' ability to pay debts (Insolvency Test) as an effort to provide legal protection for bankrupt debtors whose companies still have the prospect of being saved. Efforts to realize improvements and the establishment of positive legal protection laws for bankrupt debtors due to the absence of testing of debtors' ability to pay debts (Insolvency Test) require government involvement for:

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The actualization of idealistic legal formulation as input from the the Republic of Indonesia government as the regulator, in this case the relevant Departments and other related Ministries to form laws that violate the law, especially by amending Articles in Law No. 37 of 2004 and establishing laws specifically regarding the mechanism of testing the debtor's ability to pay debts (Insolvency Test) which comes from the ideals of Pancasila law and the 1945 Constitution of the Republic of Indonesia and the principles and legal norms also contained in UUK and PKPU as laws of the legal protection umbrella bankruptcy debtors can be used as a law of product responsibility based on the principle of legal protection for bankrupt debtors. The realization of the concretization that idealistic legal formulations as input for the legislators sitting in the Republic of Indonesia representative at the time will formulate principles that will become legal norms in the form of proposals for the formation of legislation, revocation, improvement and addition of articles certain for the development of UUK and PKPU in the form of a radical concept of the application of business continuity principles in connection with the absence of a mechanism for testing the debtor's ability to pay debts (Insolvency Test) in the future which is systematic and comprehensive as an effort to protect the bankrupt debtors in Indonesia.

5. CONCLUSION Restructuring justice-based business continuity principle should be described (concretized) on positive legal norms in legal instruments testing the debtor's ability to pay debts (insolvency test) in the context of legal protection for debtors and dispute resolution in commercial courts is reformulation of the Insolvency Test legal regulation that is necessary to change in the provisions of Article 2 paragraph (1) of Law, Number 37 Year 2004 concerning Bankruptcy and delaying of Debt Payment Obligations which regulates the requirement to declare bankruptcy debtors in the framework of improving the Bankruptcy Law in the future. therefore the Bankruptcy Law should regulate the following matters: (1) Additional conditions for the number of creditors with maturing debt, there are two or more creditors' debts whose debts have matured and can be billed; (2) Minimum terms added the amount of debt that can be requested; (3) the application of testing the ability of the debtor to pay debts (Insolvency Test) in bankruptcy; (4) the broad definition of debt in the Bankruptcy Law requires proof that is not simple; (5) Appointment of a team of expert consultants; (6) Authority of Commercial Court Judges in Insolvency Tests and (7) The need for reorganization to increase the value of companies that are still prospective.

REFERENCES

[1] Abdul Manan. (2009). Aspek Hukum dalam Penyelenggaraan Investasi di Pasar Modal Syariah Indonesia. Jakarta:Kencana. [2] Abdul R. Saliman. (2014) Hukum Bisnis Untuk Perusahaan:Teori dan Contoh Kasus, Jakarta:Kencana. 2014. [3] Adrian Sutendi.(2009). Hukum Kepailitan, Bogor: Ghalia Indonesia, 2009. [4] Catur Iriantoro. (2011) Penundaan Kewajiban Pembayaran Utang (PKPU) Dalam Proses Kepailitan di Indonesia, Tesis, Program Pascasarjana Imu Hukum Universitas Diponogoro, Semarang. [5] Fennika Kristianto.(2009). Kewenangan Menggugat Pailit Dalam Perjanjian Kredit Sindikasi, Jakarta:Minerva Athena Pressindo Persada, 2009. [6] Hikmahanto Juwana.(2004). Hukum Sebagai Instrumen Politik: Intervensi Atas Kedaulatan Dalam Proses Legislasi di Indonesia, disampaikan dalam Orasi Dies Natalis Fakultas Hukum Universitas Sumatera Utara ke-50, Sumatera Utara.

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[7] Imran Nating.(2005) Peranan dan Tanggung Jawab Kurator dalam Pengurusan dan Pemberesan Harta Pailit, Edisi Revisi, Jakarta:PT RajaGrafindo Persada. [8] Isis Ikhwansyah, Sonny Dewi Judiansyah, dan Rani Pustikasari. (2012). Hukum Kepailitan: Analisis Hukum Perselisihan dan Hukum Keluarga serta Harta Benda Perkawinan, Bandung:KENI. [9] Jerry Hoff. (2002). Indonesian Bankruptcy Law, Terjemahan Muljadi, Undang- Undang Kepailitan di Indonesia, Jakarta: Tata Nusa. [10] Kartini Muljadi. (2003). Perubahan Faillisements Verordening Dan Perpu Nomor 1 Tahun 1998 jo. UU No. 4 Tahun 1998 tentang Penetapan Perpu No. 1 Tahun 1998 tentang Perubahan atas UU tentang Kepailitan menjadi UU, Makalah Seminar Perkembangan Hukum Bisnis di Indonesia, Jakarta. [11] Lawrance Friedman.(1975) The Legal System:A Social Science Prespective, New York:Russel Sage Foundation. [12] M. Agus Santoso.(2012). “Hukum, Moral, dan Keadilan”, Jakarta:Kencana. [13] Man S. Sastrawidjaja.(2006). Hukum Kepailitan dan Penundaan Kewajiban Pembayaran Utang, Bandung:PT. Alumni. [14] Muladi, (Ed.)(2001). Penyelesaian Utang Piutang melalui Kepailitan atau Penundaan Kewajiban Pembayaran Utang, Bandung: Alummi. [15] Mutiara Hikmah. (2007). Aspek-Aspek Hukum Perdata Internasional dalam Perkara- Perkara Kepailitan, Bandung: Refika Aditama. [16] Peter Mahmud Marzuki.(2010). “Penelitian Hukum”, Kencana, Jakarta. [17] Putusan Peninjauan kembali MA RI Nomor 02/PK/N/2001. [18] Rahayu Hartini.(2009). Penyelesaian Sengketa Kepailitan di Indonesia:Dualisme Kewenangan Pengadilan Niaga dan Lembaga Arbitrase, Jakarta:Kencana. [19] Roger Cotterell.(1992). The Sociology of Law: An Introduction, London: Burterworht. [20] Rr. Dijan Widijowati.(2012). Hukum Dagang, :ANDI. [21] Satjipto Rahardjo.(2000). Ilmu Hukum, Bandung:PT.Citra Aditya Bakti, 2000. [22] Sentosa Sembiring.(2006). Hukum Kepailitan dan Peraturan Perundang-Undangan yang terkait dengan Kepailitan, Bandung:Nuansa Aulia. [23] Siti Soemarti Hartono.1981, Pengantar Hukum Kepailitan dan Penundaan Kewajiban Pembayaran Utang, Yogyakarta:Liberty. [24] Surya Perdamaian. (2001).Syarat-Syarat Pengajuan Kepailitan dan Kelemahan Hukum Acara Kepailitan dalam Praktek Pengadilan Niaga, Makalah disampaikan pada acara Forum Diskusi.Medan. [25] Syamsudin M. Sinaga.(2012). Hukum Kepailitan Indonesia, Jakarta:Tata Nusa. [26] Wahyudi, F. (2019). The Quo Vadis of Banckrupty Settlement and Pkpu Laws on Sharia Banking. Jurnal Hukum dan Peradilan 8(1), 1-20. [27] Wirjolukito. (1997). Penyelesaian Kepailitan melalui Pengadilan (Studi Kasus Kepailitan):Restrukurisasi Organisasi melalui Bisnis Kepailitan, Semarang:Fakultas Hukum Universitas Diponegoro dengan ELIPS Project. [28] Wisnu Ardytia, (No Year). Perlindungan Hukum Kreditor Dalam Kepailitan:Studi Kasus Terhadap Peninjauan Kembali Reg.No.07.PK/N/2004, Tesis, Program Studi Magister Kenotaritan Program Pasca Sarjana Universitas Diponogoro, Semarang. [29] Yuanita Harahap. (No Year). “Analisis Hukum mengenai Restrukturisasi Utang PT. Terbuka Pada Proses Perdamaian Menurut Undang Kepailitan, Tesis, Program Magister Hukum USU, Sumatera Utara. [30] Zaeni Asyhadie dan Budi Sutrisno. (2007). Hukum Perusahaan dan Kepailitan, Jakarta:Erlangga, 2012.

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[31] Zaeni Asyhadie. (2005). Hukum Bisnis:Prinsip dan Pelaksanaannya di Indonesia, Jakarta: PT.RajaGrafindo Persada.

NOTES (1) Wisnu Ardytia. (No Year). Perlindungan Hukum Kreditor Dalam Kepailitan: Studi Kasus Terhadap Peninjauan Kembali Reg.No.07.PK/N/2004, Tesis, Program Studi Magister Kenotaritan Program Pasca Sarjana Universitas Diponogoro, Semarang. p. 1 (2) Abdul Manan.(2009). Aspek Hukum dalam Penyelenggaraan Investasi di Pasar Modal Syariah Indonesia, Jakarta:Kencana. p. 1 (3) Mutiara Hikmah.(2007). Aspek-Aspek Hukum Perdata Internasional dalam Perkara- Perkara Kepailitan, Bandung: Refika Aditama. p. 1 (4) Sentosa Sembiring.(2006). Hukum Kepailitan dan Peraturan Perundang-Undangan yang terkait dengan Kepailitan, Bandung:Nuansa Aulia. p. 13 (5) Muladi, (Ed.) (2001). Penyelesaian Utang Piutang melalui Kepailitan atau Penundaan Kewajiban Pembayaran Utang, Bandung: Alummi. p. 181 (6) Catur Iriantoro. (2011). Penundaan Kewajiban Pembayaran Utang (PKPU) Dalam Proses Kepailitan di Indonesia, Tesis, Program Pascasarjana Imu Hukum Universitas Diponogoro, Semarang. p. 127 (7) Zaeni Asyhadie. (2005).Hukum Bisnis:Prinsip dan Pelaksanaannya di Indonesia, Jakarta: PT.RajaGrafindo Persada. p. 1 (8) Jerry Hoff. (2000). Indonesian Bankruptcy Law, Terjemahan Kartini Muljadi, Undang- Undang Kepailitan di Indonesia, Jakarta: Tata Nusa. p. 2 (9) Kartini Muljadi.(2003). Perubahan Faillisements Verordening Dan Perpu Nomor 1 Tahun 1998 jo. UU No. 4 Tahun 1998 tentang Penetapan Perpu No. 1 Tahun 1998 tentang Perubahan atas UU tentang Kepailitan menjadi UU, Makalah Seminar Perkembangan Hukum Bisnis di Indonesia, Jakarta. p. 1-10 (10) Wahyudi, F. (2019). The Quo Vadis of Banckrupty Settlement and Pkpu Laws on Sharia Banking. Jurnal Hukum dan Peradilan 8(1), 1-20. (11) Syamsudin M. Sinaga.(2012). Hukum Kepailitan Indonesia, Jakarta:Tata Nusa. p. 31. (12) Isis Ikhwansyah, Sonny Dewi Judiansyah, dan Rani Pustikasari. (2012). Hukum Kepailitan: Analisis Hukum Perselisihan dan Hukum Keluarga serta Harta Benda Perkawinan, Bandung:KENI.p. 26 (13) Imran Nating. (2005).Peranan dan Tanggung Jawab Kurator dalam Pengurusan dan Pemberesan Harta Pailit, Edisi Revisi, Jakarta:PT RajaGrafindo Persada. p. 26. (14) Hikmahanto Juwana.(2004). Hukum Sebagai Instrumen Politik: Intervensi Atas Kedaulatan Dalam Proses Legislasi di Indonesia, disampaikan dalam Orasi Dies Natalis Fakultas Hukum Universitas Sumatera Utara, Sumatera Utara. p. 17 (15) Surya Perdamaian. (2001). Syarat-Syarat Pengajuan Kepailitan dan Kelemahan Hukum Acara Kepailitan dalam Praktek Pengadilan Niaga, Makalah disampaikan pada acara Forum Diskusi. Medan, p. 5. (16) Wirjolukito.(1997). Penyelesaian Kepailitan melalui Pengadilan (Studi Kasus Kepailitan):Restrukurisasi Organisasi melalui Bisnis Kepailitan, Semarang:Fakultas Hukum Universitas Diponegoro dengan ELIPS Project. p. 3-7

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(17) Man S. Sastrawidjaja.(2006). Hukum Kepailitan dan Penundaan Kewajiban Pembayaran Utang, Bandung:PT. Alumni. p. 81. (18) Siti Soemarti Hartono.(1981). Pengantar Hukum Kepailitan dan Penundaan Kewajiban Pembayaran Utang, Yogyakarta:Liberty. p. 53. (19) Rr. Dijan Widijowati, Hukum Dagang, Yogyakarta:ANDI, 2012, p. 226. (20) Fennika Kristianto, Kewenangan Menggugat Pailit Dalam Perjanjian Kredit Sindikasi, Jakarta:Minerva Athena Pressindo Persada, 2009, p. 12. (21) Adrian Sutendi. (2009). Hukum Kepailitan, Bogor: Ghalia Indonesia. p. 9. (22) M. Agus Santoso.(2012). “Hukum, Moral, dan Keadilan”, Jakarta:Kencana. p. 85. (23) Satjipto Rahardjo.(2000). Ilmu Hukum, Bandung:PT.Citra Aditya Bakti. p. 53. (24) Roger Cotterell.(1992). The Sociology of Law: An Introduction, London: Burterworhts.p. 44. (25) Lawrance Friedman.(1975). The Legal System:A Social Science Prespective, New York:Russel Sage Foundation. p. 12

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