Konflik Kewenangan Bank Sebagai Kreditor Separatis Dalam Mengeksekusi Haknya Jika Debitor Dinyatakan Pailit

M. Affandi

Abstract


The Creditor which owned a mortgage security in the scope of bankruptcy law is classified and named as the separatist creditor. This separatist creditors is stipulated under the Article 21 Constitution Number 4 of 1996 concerning to the Mortgage security which states as follows: "In the event of the mortgage grantor is have been declared bankrupt, the mortgage right holder shall remain authorized to perform all rights that they have under this Constitution 'The inisiator under the Constitution Number 4 of 1996 concerning of the Mortgage provides an authentic interpretation which states as in the elucidation its Article 21 which states as follows: "The preferred security rights holder is more strengthened to exclude the mortgage grantor to the consequences of bankruptcy towards its mortgage object. The provision of the Article 56 paragraph 1 of bankruptcy law is with arbitrary eliminate the rights of the mortgage creditors which guaranteed by the mortgage law. Therefore, the judges in performing their role and breakthrough the law in interpreting the provision of Article 58 paragraph 3 Law Number 37 of 2004 concerning of bankruptcy and suspension of debt payment against the resistance effort undertaken by the holder of the first mortgage rights and besides that, should be added the Article 144 Law Number 37 of 2004 concerning of bankruptcy and suspension of debt payment which mention as follows: "The settlement as set forth under this Article can be used by the bankrupt defendant at the time was filed bankrupt by its creditor, then the bankrupt defendant should respond such bankrupt petition in submitting the suspension of debt payment solicitation with set out in the Article 229 paragraph 3 Law Number 37 of 2004 concerning of bankruptcy and suspension of debt payment and in the event if the bankrupt defendant are not using its rights to counter the bankrupt petition then by the law shall be declared insolvence as the Article 178 paragraph 1 Law Number 37 of 2004 concerning of bankruptcy and suspension of debt payment".

Keywords: Bank as the Holder of First Mortgage Rights, Separate Creditors, Preferrent Creditors.

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