The Legal Impact of Delaying Fiduciary Security Registration in

Terms of Law Number 42 of 1999 Concerning Fiduciary Security and

Regulation of the Minister of Finance Number 130/PMK.010/2012

Elis Herlina

Universitas Islam Nusantara Bandung

Jl. Soekarno Hatta No. 530, Bandung, Jawa Barat

Keywords: Financing company, fiduciary, registration

Abstract: Article 11 the Fiduciary Security Law stipulates that the object of Fiduciary Security must be registered at

the Fiduciary Registration Office before a Fiduciary Security certificate, which shall have an executorial

power, be issued. In its implementation, there are some financing companies who would like to delay the

registration. Therefore, question arises as to what kind of the legal consequences of delaying Fiduciary

Security registration in terms of Law Number 42 of 1999 concerning Fiduciary Security and Regulation of

the Minister of Finance Number 130 / PMK.010 / 2012. This was an analytical descriptive research with a

normative juridical approach. The data collection of this study was performed by using literature study

technique, while the data were obtained are analyzed in a qualitative juridical manner. The legal

consequence of delaying the Fiduciary Security registration is that, if the debtor performs defaults, the

financial institution would be incapable to execute Fiduciary Security for there is no Fiduciary Security

certificate available, so that it can only be done by filing a civil suit to the District Court, and that the position

of the financial institution would merely be as the concurrent creditor.

1 INTRODUCTION

Fiduciary law is currently regulated by Law No.

42/1999 on Fiduciary Security. Article 11 of the

Fiduciary Security Law requires that the object of

Fiduciary Security should be registered at the

Fiduciary Registration Office located in Indonesia.

The Fiduciary Registration Office issues a Fiduciary

Security Certificate on the same date as of the receipt

of the application for registration. The Fiduciary

Security Certificate, as referred to in Article 14

paragraph (1), shall include the words “For the sake

of Justice of the Divine God" and possess an

executorial power equal to a court decision which

has obtained permanent legal force, meaning that

this Fiduciary Security Certificate may be

immediately executed/carried out without

undergoing a trial process and examination through

the court, and it is final as well as binding to the

parties. If the debtor makes default, the fiduciary

receiver will be eligible to sell the object of

Fiduciary Security at his authority.

The purpose of the registration of this Fiduciary

Security is to provide the right for a creditor to be

the preference above the other creditors in taking the

payment of receivables which come from the results

of the execution of Fiduciary Security objects due to

the debtor defaults. The implementation is regulated

by Regulation of the Minister of Finance of the

Republic of Indonesia Number 130 / PMK.010 /

2012 concerning Registration of Fiduciary Security

for Financing Companies Conducting Consumer

Financing for Motorized Vehicles under Fiduciary

Security Imposition. In this regulation, it is

determined that all financing companies shall be

required to register Fiduciary Security for each

financing transaction within 30 calendar days from

the date of consumer financing (Ibnu Artadi,

Sudarminto dan Wulansari Partinah, 2018).

However, in the implementation, there are some

financing companies who keep delaying Fiduciary

Security registration.

170

Herlina, E.

The Legal Impact of Delaying Fiduciary Security Registration in Terms of Law Number 42 of 1999 concerning Fiduciary Security and Regulation of the Minister of Finance Number

130/PMK.010/2012.

DOI: 10.5220/0009987200002905

In Proceedings of the 8th Annual Southeast Asian International Seminar (ASAIS 2019), pages 170-173

ISBN: 978-989-758-468-8

2 LITERATURE REVIEW

There are two types of Fiduciary Security,Fiducia

cum creditore and fiducia cum amico. Both of which

arise from the agreement called the pactum fiduciae

and are further followed by the transfer of rights or

in iure cession. Fiducia cum creditore contracta

means the promise of trust made together with the

creditor, that the debtor will transfer the ownership of

an object to the creditor, as collateral for the debt,

under the consent that the creditor will transfer the

ownership back to the debtor if the debt has been

settled. (Gunawan Widjaja & Ahmad Yani, Jaminan

Fidusia, 2007). In fiducia cum creditore, there are

several important things which constitute elements

in the legal relationship between the debtor and the

creditor, such as: (Tan Kamelo, 2006)

The debtor transfers ownership of the object to

the creditor.

The object submitted is recognized as the

collateral of the debt.

Physically, objects which are used as collateral

for debt shall be controlled by the debtor.

The creditor shall be obliged to return the

property rights to the debtor after carrying out

his obligations. In Indonesia, the existence of

fiduciary was recognized by jurisprudence

based on the decision of HGH on 18 August

1932.

The issuance of the Fiduciary Act is a kind of

official acknowledgment from the legislators of a

Fiduciary Security institution, which. to these days,

only gained recognition through jurisprudence.

According to Article 1 sub 1 of the Fiduciary Act: A

fiduciary is the transfer of ownership of an object on

the basis of trust, provided that the object whose

ownership rights is transferred remain in the

possession of the owner of the object. Some

characteristics appearing in the formulation include

(Satrio, 2007). The ownership rights of an object can

be transferred, performed on the basis of trust the

object remains in the possession of the object owner.

3 RESEARCH METHODS

This research was normative juridical research,

which means that this research used secondary data

or literature data (Ronny Hanitijo Soemitro, 1990)

and it had the characteristic of analytical

descriptive. (Soerjono Soekanto, 1986). The data

collection technique was conducted by performing

library. As supporting data, interviews were

conducted together with related parties. Then the

data obtained were analyzed using qualitative

descriptive methods. (Maria S.W. Sumardjono,

1989).

4 DISCUSSION

In the practice, while entering the financing

agreements, financing companies include words that

are guaranteed on a fiduciary basis, yet not be made

with a notarial deed and not registered at the

Fiduciary Registration Office in order to get a

certificate or registration delay. This, as the matter

of fact, generates complex and risky legal

consequences. Creditors can be considered one-

sided when exercising their rights of execution and

they can be quite arbitrary. Currently, there are

finance companies who execute unregistered

Fiduciary Security objects, yet they find that their

actions are safe and smooth because customer’s

bargaining power of is still considered weak in the

eyes of the creditors (as owners of funds), and

because people’s knowledge is still low. This

weakness is usually exploited by business doers,

particularly the business person in financial

institutions' sector (Grace P. Nugroho). Following

Article 11 of the Fiduciary Security Law,

registration of Fiduciary Securities must be carried

out by business doers. Besides, there are many credit

transactions, especially motorcycle loans, whose

executions simply ignore the obligation to pawn

goods that are traded by debtors and creditors,

causing legal uncertainty to the debtors and creditors,

while the registration of Fiduciary Security actually

gives priority rights (droit de preference) to the

fiduciary receiver among the others creditors. (Eva

Andari Ramadhina, 2017).

The main substances regulated in the Minister of

Finance Regulation Number 130 / PMK.010 / 2012

shall include: (Ibnu Artadi, Sudarminto dan

Wulansari Partinah, 2018).

The Financing Company that carries out

financing for consumer upon motorized

vehicles, with the imposition that the concerned

Fiduciary Security must be registered to the

fiduciary registration office.The Fiduciary

Security registration requirement is also

applicable to the financing companies who

conduct sharia-based financing for the motor

vehicle consumers and/or the financing for

motorized vehicle consumer whose execution is

performed through channeling or joint

financing.

The Legal Impact of Delaying Fiduciary Security Registration in Terms of Law Number 42 of 1999 concerning Fiduciary Security and

Regulation of the Minister of Finance Number 130/PMK.010/2012

171

Financing companies must register the

Fiduciary Security at the fiduciary registration

office no later than 30 (thirty) calendar days

from the date of the consumer financing

agreement.

Financing companies are prohibited to

withdraw fiduciary collateral in the form of

motorized vehicles if the fiduciary registration

office has not issued a Fiduciary Security

certificate, and they should hand it over to the

financing company.

Withdrawal of fiduciary collateral objects in

the form of motorized vehicles, which will be

performed by financing companies, must fulfill

the terms and conditions as regulated in the

Fiduciary Security Act and have been agreed by

the parties involved in the motorized vehicle

consumer financing agreement. Article 5 of the

Minister of Finance Regulation Number 130 /

PMK.010 / 2012 stipulates that if a financing

company violates this obligation, then

administrative sanctions shall be imposed in the

form of: (Ibnu Artadi, Sudarminto and

Wulansari Partinah, 2018)

a. Warning;

b. freezing of business activities, or

c. revocation of business license

Fiduciary Security Certificates which is issued after

the period of 30 days from the date of the Consumer

Financing Agreement shall have no legal force, for

they have passed the time specified in the

Regulation of the Minister of Finance Number 130 /

PMK.010 / 2012. Although the Fiduciary Security

Certificate is no longer possessing legal force, it

does not mean that the Consumer Financing

Agreement will also be considered as null and void.

Therefore, if a breach of contract occurs, the

execution of fiduciary security can be carried out by:

Submitting a civil suit to the District Court until

the verdict with permanent legal force is

granted.

Conducting private sales based on the consent

of the Fiduciary provider and Receiver 1 (one)

month after they notified the concerned parties

and announced it in 2 (two) newspapers

published in the concerned area.

asking the help of Alternative Dispute

Resolution agencies.

The purpose of fiduciary security registration is to

provide legal certainty to fiduciary the receiver and

provider, and the interested third parties, because,

with this registration, a Fiduciary Guarantee

certificate will have the right to possess executorial

power which is likened to a court ruling with

permanent legal force, meaning that, with a

Certificate of Guarantee, this fiduciary can be

directly executed or carried out without going

through a trial and examination process in a court,

and this fiduciary is deemed final and binding to the

parties, requiring them to carry out the decision.

(Yurizal, 2015).

5 CONCLUSIONS

Based on the above description, it can be concluded

that legal impact of delaying fiduciary Securities

registration, in terms of Law Number 42 of 1999

Concerning Fiduciary Securities and Regulation of

the Minister of Finance No. 130 / PMK.010 / 2012,

will be the incapability, suffered by business doers,

in executing fiduciary security whenever the debtor

performs defaults, since there is no fiduciary security

certificate that possesses executorial power just like

a court decision with its permanent legal force, so

the business actor can only file a civil law to the

District Court and the position of the financial

institution only as the concurrent creditor.

6 SUGGESTIONS

Supervision from the Financial Services Authority is

required so that financing companies will be willing

to carry out the obligations of registering fiduciary

security. In addition, Fiduciary Security Law

Socialization still needs to be socialized.

REFERENCES

Eva Andari Ramadhina, 2017, Penerapan Asas Jaminan

Fidusia dan Perjanjian Pada Pendaftaran Jaminan

Fidusia Dalam Pembiayaan Konsumen, Privat Law,

Vol. V No. 1, Januari 2017

Gunawan Widjaja & Ahmad Yani, 2007, Jaminan Fidusia,

PT. Raja Grafindo Persada, 2007.

Grace P. Nugroho, “Eksekusi Terhadap Benda Objek

Perjanjian Fidusia dengan Akta di Bawah Tangan”,

dalam: http://www.mediakonsumen.com/Artikel

1164.html

Ibnu Artadi, Sudarminto dan Wulansari Partinah, 2018,

Hermeneutika, Vol. 2 Nomor 2.

J. Satrio, 2007, Hukum Jaminan Hak Jaminan Kebendaan,

PT. Citra Aditya Bakti, Bandung.

Maria S.W. Sumardjono, 1989, Pedoman Pembuatan

Usulan Penelitian, Fakultas Hukum UGM,

Yogyakarta.

ASAIS 2019 - Annual Southeast Asian International Seminar

172

Ronny Hanitijo Soemitro, 1990, Metodologi Penelitian

Hukum dan Juritmetri, Ghalia Indonesia, Jakarta.

Soerjono Soekanto, 1986, Pengantar Penelitian Hukum,

Universitas Indonesia Pers, Jakarta.

Tan Kamelo, 2006, Hukum Jaminan Fidusia Suatu

Kebutuhan Yang Didambakan, Alumni, Bandung.

Yurizal, 2015, Aspek Pidana dalam Undang-Undang

Nomor 42 Tahun 1999 Tentang Jaminan Fidusia,

Media Nusa Creative, Malang.

Kitab Undang-Undang Hukum Perdata.

Undang-Undang Nomor 42 Tahun 1999 Tentang Jaminan

Fidusia.

Peraturan Menteri Keuangan No. 130/PMK.010/2012

Tentang Pendaftaran Jaminan Fidusia Bagi Perusahaan

Pembiayaan yang Melakukan Pembiayaan Konsumen

Untuk Kendaraan Bermotor Dengan Pembebanan

Jaminan Fidusia.

The Legal Impact of Delaying Fiduciary Security Registration in Terms of Law Number 42 of 1999 concerning Fiduciary Security and

Regulation of the Minister of Finance Number 130/PMK.010/2012

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