A CONSEQUENCE OF THE LAW AGAINST THE BANK'S CREDIT IN THE ABSENCE OF A FIDUCIARY BAIL

Introduction

Banks in providing credit or capital assistance to micro businesses are bound by a credit agreement that contains the rights and obligations of banks as credit providers and micro businesses as credit recipients. Credit agreement is one of the most important aspects in granting credit. Without credit agreements signed by banks and debtors, there is no credit. Banks in their efforts to provide credit always carry the risk of loss as a result of the non-return of funds lent according to the credit agreement. In granting loans, banks also require additional collateral in the form of both movable and immovable property belonging to the debtor, in addition to the debtor's business which is also a guarantee.

In the case that the collateral is a movable object, it can be charged for pawn and fiduciary. In a pawn guarantee, the In Bezit Stelling condition applies, which is one of the conditions that the movable object which is a guarantee must be under the authority of the pawn holder or the lender. This condition is felt heavy by the credit applicant and is reluctant to hand over the collateralized object because it is very necessary to run the business. For this reason, in practice, fiduciary collateral is often used in obtaining credit from banks, because with the imposition of fiduciary collateral, the objects used as collateral for credit are still in the debtor's power. Based on the provisions of Article 5 paragraph 1 of Law No. 42 of 1999 concerning Fiduciary Guarantees, the imposition of objects with fiduciary guarantees is made with a Notarial Deed in Indonesian and is a Fiduciary Guarantee deed. Furthermore, based on the provisions of Article 11 paragraph 1 of the Fiduciary Guarantee Act, objects charged with fiduciary guarantees must be registered at the Fiduciary Security Registration Office within the scope of the Fiduciary Registration Office within the scope of the Dapartemen Legal and Human Rights tasks (Article 11 paragraph 1 Law Number 42 of 1999 concerning Fiduciary Security). And then based on PP Number 21 of 2015 carried out online.

Purpose and Objectives of Fiduciary Guarantee Registration

As explained above, fiduciary guarantees must be registered in accordance with statutory provisions (Law No. 42/1999) registration of Fiduciary guarantees is carried out to provide legal certainty for parties concerned with credit agreements. The purpose of the regulation which requires the registration of fiduciary deeds is as follows

1.     To provide legal certainty to the parties concerned

2.      Give preferential rights to fiduciary recipients of other creditors. This is due to fiduciary guarantees granting the right to fiduciary recipients to retain control of their objects which are objects of fiduciary security based on trust

3.     Meet the principle of publicity

The procedure in registering for fiduciary deeds as stipulated in Article 11 to Article 18 of Law Number 42 of 1999 concerning Fiduciary Guarantees and Government Regulation Number 21 of 2015 concerning Procedures for Registration and Costs for Making Fiduciary Guarantee Acts

Position of the Bank as a Creditor in the Fiduciary Guarantee Not Registered

Registration of a Fiduciary guarantee is an obligation as determined in Article 11 of Law Number 42 of 1999 concerning Fiduciary Security. If the obligation is not carried out, it certainly has legal consequences on the position of the bank as a creditor, where the bank is located as a concurrent creditor and not as a preferred creditor. According to Sutan Remmy Sjahdenni, concurrent creditors are creditors who do not have the right to prioritize repayment of debt against other creditors, while preferred creditors are creditors who have the right to prioritize repayment of debt against other creditors. Therefore, if a bank as a fiduciary recipient does not register a fiduciary guarantee at the Fiduciary Registration Office that has been designated by the Act, the legal position of the bank is only as a concurrent creditor whose position is weak because they have to compete with other concurrent creditors in fulfilling their receivables. 

Conclussion

1.     The purpose and objective of requiring the registration of fiduciary guarantees is to give legal certainty to the parties concerned, giving priority rights to fiduciary recipients of other creditors and to fulfill the principle of publicity

2.      The position of the bank as a creditor in the event that the registration of fiduciary collateral is not carried out by the bank, the bank is located as a concurrent creditor