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 □ 144 Tadulako Law Review | Vol. 3 Issue 2, December 2018 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 □ 145 Tadulako Law Review | Vol. 3 Issue 2, December 2018 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 □ 146 Tadulako Law Review | Vol. 3 Issue 2, December 2018 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