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Restructural Justice-Based Legal Protection for Bankrupt Debtors in Settling Bankruptcy Disputes

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Restructural Justice-Based Legal Protection for Bankrupt Debtors in Settling Bankruptcy Disputes 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, Indonesia 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 http://iaeme.com/Home/journal/IJCIET 885 [email protected] Serlika Aprita, Joni Emirzon and Muhammad Syaifuddin 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.
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