LEGAL PROTECTION OF THE CREDITORS IN EXECUTING FIDUCIARY GUARANTEE OBJECT WHOSE POSSESSION IS NOT ON THE DEBTORS’ HAND ACCORDING TO LAW NUMBER 42 YEAR 1999 CONCERNING FIDUCIARY GUARANTEE

Abstract

The fiduciary guarantee arises upon the signatory of financing agreement between the creditor and the debtor. The agreement will eventually be registered to the notary to process the making of fiduciary guarantee deed. The notarial deed on the fiduciary guarantee shall be registered at the Fiduciary Regitration Office in order to make the fiduciary guarantee certificate which possess equal power with court decision. The fiduciary guarantee through the fiduciary guarantee certificate originally aims to provide legal certainty to the creditor so that on the circumstances where the debtor defaults, the creditor may directly, with parate executia (direct execution), execute the fiduciary guarantee object. The problem then appears on the situation where the fiduciary guarantee object has been transferred to another party beyond the financing agreement between the creditor and the debtor on whether the execution to the party outside the agreement is legal or not. The existance of this problem cause this issue to be an interesting topic to be described in legal perspectives. Using conceptual approach and supported with statutory approach as well as data which are obtained from an interview with concerned parties, the author analyzed the legal protection of the creditor in executing the fiduciary guarantee object whose possession is not on the debtor’s hand to identify the legalization of the execution of the fiduciary guarantee object as well as the legal protection to the debtor on this issue. The result of this research is that the fiduciary guarantee object binds the object not the subject of the fiduciary guarantee and therefore whoever possesses the fiduciary guarantee object, whether the parties in financing agreement or not, the power of fiduciary will follow the object. Therefore on the circumstances where the debtor on the agreement defaults, the creditor is entitled to execute the fiduciary guarantee objecet whereever and whoever possesses it at anytime and anywhere.