ESTABLISHING TIME LIMITS FOR SEPARATIST CREDITORS TO RELEASE THEIR RIGHTS AFTER AN INSOLVENTION CIRCUMSTANCE STARTS
2024
Dharmadji S.K. | Nasution K.
According to Article 55, paragraph 1 of Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations (Bankruptcy Law and PKPU), creditors who hold pledges, fiduciary guarantees, mortgage rights, or collateral rights for other objects (separatist creditors) may, in theory, exercise their legal rights as if bankruptcy had not occurred. For separatist creditors, it is extremely difficult to carry out collateral execution within the two-month timeframe specified in Article 59, Paragraph 1 of the Bankruptcy Law and PKPU. The purpose of this study is to ascertain if the principle of material rights is violated by setting a two-month deadline for separatist creditors to assert their rights following the commencement of an insolvency crisis. The principles of property rights regulated in Article 21 of the Mortgage Law and Article 27 paragraph (1) of the Fiduciary Law are examined in this research along with the provisions of Article 59 paragraph (1) of the Bankruptcy Law and PKPU. However, because of the principle of lex specialis derogat legi generalis, which is present in both the Bankruptcy Law and PKPU, they have the authority to supersede the Mortgage Rights Law and the Fiduciary Law. The goal of this study is to ascertain whether or not the concept of material rights is violated by setting a two-month deadline for separatist creditors to assert their rights following the onset of an insolvency scenario. In the realm of bankruptcy law in particular, it is hoped that this research will help clarify the two-month period from the onset of an insolvency situation within which separatist creditors can assert their rights in bankruptcy disputes.
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