« Back to Actio#5

POLEMIC DUE TO THE ISSUANCE OF (SEMA) NUMBER 2 YEAR 2016

The issuance of the Supreme Court Circular No. 2 of 2016 (“SEMA 2/2016”) has the potential to create a new polemic in its implementation. One of the
points in SEMA issued on April 25, 2016, is that it requires the debtor to include written approval from the creditor against the curator submitted by the debtor (“creditor approval”).

It is understood that SEMA 2/2016 is published with good intention, especially
to carry out the principle of parity, i.e. to prevent the abuse of institutions and bankruptcy institution by dishonest debtors, how also to prevent abuse of regulations and bankruptcy institutions by creditors who are not in a good faith.

However, as a matter of fact, the implementation is not as simple as what is written in SEMA 2/2016. one of them is the case of bankruptcy filed by PT. Ramaldi Praja Sentosa (“PT RPS”) in the commercial court at the Central Jakarta District Court No. 49/Pdt.Sus-Pailit/2016/ PN.Niaga.Jkt.Pst on October 17, 2016.

In that bankruptcy case submission, PT. RPS submitted the file of bankruptcy with the basis of having one due and collectible debt as well as having more than one creditor. During the trial, PT. RPS invites its creditors, namely PT. Bank BNI (Persero) Tbk, TNI AU (MBAU), and S’Net.

Along with the filing of the bankruptcy, PT. RPS proposed a curator for the purpose of settling its bankruptcy estate. Although, according to PT. RPS, it has submitted the approval form for the curators proposed to the creditors, the fact until the date the verdict was read by the judge, there were no creditors returned the form of approval to the debtor.

On this basis, the judges of the commercial court declined the bankruptcy act filed by PT Ramaldi Praja Santosa with legal considerations that PT Ramaldi Praja Santosa did not meet the formal requirements stipulated by SEMA 2/2016. Although PT. RPS then filed an appeal, the effort failed after the Supreme Court rejected the appeal.

This verdict raises some interesting new legal issues to discuss. There are at least two elements that interest the author related to the terms of creditor approval of the curator set by SEMA 2/2016.

First, is the independence of a curator measurable by the presence or absence of the creditor’s consent? Secondly, has SEMA exceeded the requirements of bankruptcy submission approval as stipulated by Law Number 37 Year 2004 about Bankruptcy and Suspension of Payment (“Bankruptcy Law”)?

As known, the Bankruptcy Law only requires that the bankruptcy filing request shall be accepted if

(i) there are at least two creditors;

and

(ii) the existence of a debt that has due and collictable .1

The extra requirement is the verification of the debt, which must be simple. 2

In this case, it is interesting to question whether the other terms of the creditor’s agreement are contradicting with the Bankruptcy Law, or SEMA 2/2016 is only the expansion of meaning from the Article 15 paragraph (3) of the Bankruptcy Law which stipulates that the appointed curator must be independent.

If so, will the independence of a curator be measured by the presence or absence of creditor approval of the curator’s proposal by the debtor? Furthermore, how will it be executed if there is a conflict between creditors to the curator proposed by the debtor? This issue becomes a homework for the legislative institution which is currently discussing the new Bankruptcy Bill.

It is well understood that SEMA 2/2016 is the Supreme Court’s response to the creditor’s concerns about the existence of debtors who take advantage of bankruptcy agency and PKPU institutions to the benefit of themselves or some creditors. On the other hand, the issuance of SEMA 2/2016 has triggered a new polemic potential, both in interpretation and implementation. It is expected that the new bankruptcy law can address this issue.

-SMF-

1. Article 2 paragraph (1) of the Bankruptcy Law.

2. Article 8 paragraph (4) of the Bankruptcy Law.