Friday, January 14, 2011

Execution Against Objects Objects fiduciary agreement with the Deed of Hands Down

Agreement is an agreement fiduciary accounts receivable payable to the debtor's creditors that involves underwriting. Guarantee the position still in control of security owners.

But to ensure legal certainty for creditors who then made the deed made by a notary and registered at the Registry Office fiduciary. Later creditors will receive a guarantee certificate fiduciary berirah-Irah "For Justice Based Belief in God Almighty". Thus, having the right power immediately if the debtor eksekutorial violated fiduciary to the creditor agreement (parate execution), according to Law No. 42 of 1999 concerning Guarantee fiduciary.

Then, what about the fiduciary agreement that does not make you a notary in and registered at the registration office created under the fiduciary aka the hand? Understanding the deed under the hand is a deed made between the parties which are not pembuatanya in the presence of a valid certificate maker established by law (notary, PPAT, etc.).

Deed under the hand is not an authentic act that has evidentiary value perfectly. In contrast, authentic deed is the deed made by, or in front of the official appointed by the Law and has a perfect proof strength. To act carried out under the hands usually have to re diotentikan by the parties if it would be legal evidence, such as in court. The question is whether the valid and have legal proof of the strength of a certificate under the hand? Writer's opinion, legitimate use as long as the parties acknowledge the existence and contents of the deed. In practice, at home or because of certain conditions cause the legal relationship was strengthened by deed under the hand as in the process of buying and selling debt receivables. However, that deed is strong, still have legalized the parties to the authorities.

Currently, many financial institutions (finance) and banks (commercial banks and rural credit) organized financing for the consumer (consumer finance), lease (leasing), factoring (factoring). They generally use ordinances that include agreement guarantees fiduciary for fiduciary assurance body object. Practice of financing institutions to provide the requested goods moving consumer (such as motor or industrial machinery) and consumer diatasnamakan as debtor (recipient's credit). Consequently the debtor gave the creditor (lender) a fiduciary. That means the debtor as the owner on behalf of the goods to be the fiduciary to the creditors in accepting the position as fiduciary. Simple in practice is the debtor's fiduciary assurance / parties who have filed financing of goods to the creditor, then the two sides both agree to use the insurance fiduciary debtor belongings and made a notary and registered at the registry office with fiduciary. Creditors as the recipient will get a Certificate of Authenticity fiduciary fiduciary, and a copy given to the debtor. With the certified fiduciary guarantees the lender / recipient fiduciary necessarily have the right to direct execution (parate execution), as occurs in borrowing in the banking and loans. Legal force of the certificate is equal to the court's decision that already had permanent legal force.

Facts on the ground shows, financing institutions in financing agreements mencamtumkan pledged words are fiduciary. But the irony is not made in a notary and not registered at the registry office to get a certificate fiduciary. Such a deed can be called a fiduciary warranty deed under hand.

If the recipient of fiduciary having trouble in the field, so he can ask the local court through the bailiff make the determination letter application execution security assistance. Execution security assistance can be directed to police officers, civil service and civil villages / village where the object is the object of fiduciary insurance. Thus creating a certificate that guarantees to protect the recipient fiduciary fiduciary fiduciary if the provider fails to meet obligations as stated in the agreement of both parties.

As a result of Law

Fiduciary assurance that security certificates are not made fiduciary legal consequences of complex and risky. Creditors can do the right execution for being one-sided and can lead to arbitrariness of the creditors. It could also be due to considering the financing of goods fiduciary objects are usually not full in accordance with the value of goods. Or, the debtor's obligations some of the agreements made, so that it can be said that the above goods are standing right in part and partly owned by the debtor's creditors. Moreover, if the execution is not through price assessment agency or entity authorized public auction. This behavior can be categorized as an act against the Law (PMH) as stipulated in Article 1365 Book of the Law and the Civil Code can be sued for damages.

In the conception of criminal law, fiduciary object execution at the hands of criminal acts included in Article 368 if the creditors do KUHPidana coercion and the threat of expropriation. This Article states:

1. Whoever with the intent to benefit himself / herself or another person unlawfully, forcing a by force or threat of violence to give something good, wholly or partly belonged to that person or another person, or to make debt and eliminate debt, liable for extortion with a maximum imprisonment of nine months.
2. Provisions of Article 365 second paragraph, third, and fourth true for this crime.

This situation can occur if the creditor in execution to coercion and take the goods unilaterally, but it is known in the goods wholly or partially owned by someone else. Although also known that some of these items belonged to creditors who want to execute but is not registered in the fiduciary office. Even the imposition of other articles can happen to remember that everywhere execution is not easy, for it will take legal guarantee and support law enforcement agencies legally. This is the urgency balanced legal protection of creditors and debtors.

Even if the debtor's fiduciary transfer objects objects made under the hand to the other party can not be snared by Law No. 42 of 1999 concerning fiduciary assurance, because legalnya unauthorized or fiduciary assurance agreements made. That the debtor may have shifted the goods object of fiduciary assurance in reporting on embezzlement charges in accordance

Article 372 KUHPidana insisted: "Anyone who intentionally and unlawfully possessing something that wholly or partly belonged to someone else, but who are in power not because crime is liable for fraud, with a maximum imprisonment of four years or a maximum fine of nine hundred dollars ".

By creditors, but it also could be a blunder because it can be reported together because some of these items belonged to both all creditors and debtors, civil decisions required by local courts for the seats the portion of each owner of an item to both parties. If this is adopted there will be a long legal process, tedious and not cost you a bit. As a result, margins to be achieved not realized the company could even lose money, including loss of time and thought.

Financial institutions that do not register the actual collateral loss fiduciary himself because he had no legal right eksekutorial. Poblem business that requires speed and excellent customer service is always inconsistent with the logic of existing law. Perhaps because of the law or the legal vacuum that is not always as fast as the times. Imagine, fiduciary assurance must be made before a notary while financial institutions make agreements and fiduciary transactions in the field in a relatively fast.

Today many financial institutions to execute on the objects that encumbered goods fiduciary assurance which is not registered. Can be called remedial, rof Coll, or remove. During this financial companies feel their actions have a safe and smooth. According to the authors, this occurs because it is still weak bargaining power of creditors of the customer as the owner of funds. Plus legal knowledge society is still low. This weakness exploited by the financial industry businesses, especially financial institutions sector and banks that run fiduciary assurance practices by deed under his hand.

The author is also concerned about the alleged non pengemplangan income tax according the No.. About 20 Year 1997 Non-Tax Revenue, because millions of financing (consumption, manufacturing and industry) with fiduciary assurance are not registered and have a great potential financial harm state revenues.

Process Execution

That the principle of agreement "pacta sun servanda" which states that the agreement made by the parties agree, will become law for both, remains valid and become the main principle in treaty law. But the agreement that provides assurance fiduciary under the hand can not be executed. Process execution must be carried out by a civil lawsuit filed to the District Court through the legal process that normally show up to drop a court decision. This is the choice of procedural law in order to maintain the formal justice and the rule of law it contains material.

This process is almost certainly take a long time, if the parties to use all available remedies. Costs incurred must also not small. Of course, this is a choice dilemma. Pretext of pursuing large margin should also consider the sense of justice of all parties. Society generally becomes more customer must also critical and thorough in doing transactions. As for the government, certainty, justice and the rule of law is important.

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