PERSPEKTIF HUKUM ATAS PEMILIK JAMINAN FIDUSIA SEBAGAI KREDITUR TERHADAP DEBITOR PAILIT

Abstract

Fiduciary guarantees as part of property rights have a strategic role in bankruptcy law, especially in determining the position and execution rights of creditors. In the condition of a bankrupt debtor, all assets become bankrupt estate, but fiduciary rights remain attached to the collateral object and provide a special position for the creditor as a separatist creditor. This allows the creditor to execute their guarantee independently, without having to submit to the general bankruptcy process, as regulated in Article 55 paragraph (1) of the Bankruptcy and PKPU Law and Article 27 of the Fiduciary Guarantee Law. These separatist rights are strengthened by the fiduciary nature that gives priority to repayment and continues to follow the collateral object (droit de suite), and is public through recording. However, through Constitutional Court Decision Number 18/PUU-XVII/2019, it is emphasized that execution of fiduciary objects can only be carried out if there is an agreement or legal proof of default, to guarantee legal protection for the debtor. Thus, the legal relationship between creditors and debtors under fiduciary guarantees remains within the bounds of legal certainty and justice in the bankruptcy process.