The background of the enactment of Law No. 42 of 1999 regarding Fiducia Security is the interest to develop the economy, particularly to support financing activities. In particular, it is also intended to be a facility to create an integral fiducia security law. Fiducia Security Law regulates the principles of law on security that is absolute principle, Droit de suite, preference, priority and publicity. The existence of such principles shows that the fiducia security, as a type of security which has a position in law on security in Indonesia, has given sufficient legal certainty for the parties, particularly the ones engage in economic activities.
One of the principles which give protection to the fiducia grantee is the principle of parate executie, as provided under Article 15(2) and Article 29(1) of Fiducia Security Law. The mechanism/enforcement procedures of parate executie are as follows:
A. Enforcement of the executory power inherent to the Fiducia Certificate by the fiducia grantee (in the fiducia certificate which is made in notarial form, it includes the passage “Demi Keadilan Berdasarkan Ketuhanan Yang Maha Esa” which has executorial power with the same legal effect as a final and binding court decision), and therefore a creditor is not required to demand a court to issue a writ of execution permitting the enforcement of fiducia security in the event of a breach of the debtor.
B. The sale of fiducia object based on the fiducia grantee (bank)’s power through public auction and apply the sale proceeds for the repayment.
C. The private sale based on the consensus between the fiducia grantor (debtor) and the fiducia grantee (bank) if the highest possible price for the interest of both parties can be obtained.
The enforcement of parate executie give certain facilities to the creditor such as: easy procedures, faster, cheaper and simpler way to get repayment; certainty in selling the fiducia object; and is an exception to enforcement procedures based on the proceedings under the Civil Law (Hukum Acara Perdata). Therefore, such benefit of parate executie in order to get repayment when the debtor is in default is beneficial for enterpreneurs in financing sectors. Hence, it can be concluded that parate executie, in a normative way, is a main pillar in law on security, particularly in fiducia security.
In practice, nevertheless Fiducia Security Law is effective, several related minister regulations and the Regulation of the Head of Indonesian Police Force Number 8 of 2011 regarding the Safety in the Enforcement of Fiducia Security still have issues, particularly in enforcing fiducia security. The issues are as follows:
The above mentioned are some of the issues arising from the enforcement of parate executie of fiducia security which requires attention from the relevant stakeholders, so that the law protection for creditors as mandated by the Fiducia Security Law, can be implemented.
-AP-