The Principle of Justice In The Execution of Liability Rights According to The Indonesian Legal System

Jan 10, 2022

Initially, the implementation of the mortgage can be carried out directly by the holder of the mortgage and can be used in the sale of the object of the mortgage without court intervention. The point is that the auction of mortgage rights is carried out with its own power without the intervention of the judiciary.

Auction flows directly by mortgage holders in the form of mortgage objects, the condition is that there must be an official provision that has given power to the mortgage right holder. Selling mortgage goods is called the aigenmachtige verkoop clause. The basis is that the debtor agrees to grant the mortgage to the creditor without the need to sell the mortgaged goods through the courts. If the debtor defaults, this is based on Article 1178 of the Civil Code. The execution process based on aigenmachtige verkoop is specified in article 1178 jo. Article 1211 of the Civil Code, concerning Public Auctions.

With the “Mortgage Law" Number 4 of 1996, mortgage rights can be enforced, and if the debtor defaults, there is no need to be prosecuted. This is because the mortgage has execution rights that can be executed immediately. In this case, it has complied with the provisions of Article 14, Paragraph 1, Paragraph 2 and Paragraph 3 "Mortgage Rights Number 4 of 1996".

In accordance with Article 14 Paragraph 2 of Law Number 4 of 1996 concerning Mortgage Rights, a mortgage certificate is a sign or proof of the existence of a mortgage and can result in the implementation of a mortgage with an execution order. Irahira. Including what is written "For Justice Based on God Almighty." With this application, the mortgage letter has the same enforcement power as a court decision that has permanent legal force.

The implementation of mortgage rights must be based on the principle of justice. Justice is an obligation that must be carried out by everyone, must not be violated, it is not easy to act fairly, but must be carried out according to the rules, so that people can live side by side, respect each other, and do not violate the rights of others. Justice must be considered in law enforcement, from law enforcement, the law becomes real. There are 3 things that must be considered in enforcing a law, namely: legal certainty, legal benefits, and justice. Justice is Virtue or excess over the first good things of social institutions, such as truth in the system of thought including the connection between a human and another human, according to their rights and obligations.

Ignoring the aspect of justice in the execution of the guarantee of Mortgage is the same as ignoring the legal principles of guarantees in general, the principle of publicitet, the principle of speciality, the principle of indivisibility, the principle of inbezittstelling and the horizontal principle and the principles that apply specifically to the Mortgage alone. It is very reasonable that Article 6 of the UUHT which regulates executions, especially the execution parate, still needs a more in-depth discussion, so that there is no confusion in the regulation of the parate execution institution in its implementation.

Based on Law Number 4 of 1996 concerning Mortgage Rights, in particular Article 6 regarding the execution of Mortgage Rights is expected to be able to provide dignified justice and not harm debtors or creditors. However, Article 6 is indicated to give special powers to creditors to sell the object of Mortgage if the debtor breaks his promise without requiring further approval from the Mortgage provider, in the event that the legal objective is dignified justice for both parties, both debtors and creditors.

A.     Formulation of the problem

1.      What is the principle of justice in the execution of mortgages according to the Indonesian legal system?

2.      How to apply the principle of justice in the execution of mortgages

B.     Theoretical Framework

1.   The Concept of Justice According to the Indonesian Legal System Based on Pancasila

The definition of justice is one of the most important goals that exist in the legal system, although there are still other legal goals such as legal benefits, certainty of a law, and legal order. 4 important foundations that exist in human life are truth, justice, morals, and law. Meanwhile, Plato argues that the highest value of policy is law. The basic principles of national organizations also implicitly interfere with basic principles: separation of powers, judicial review, legality principles, "fair" procedures, legal certainty, proportions, etc.

Basically, the concept of justice is issued by many experts because justice is actually a right that can fulfill human interests. The notion of justice has been put forward in the concept of justice, in which the notion of justice is putting something based on the facts. The term fairness or justice is a combination of moral and social values, and is the embodiment of fairness (fairness/honesty/fairness); balance (balance); temperance (restraint) and directness (honesty).

The principle of justice formally in Indonesia is stated in the preamble to the 1945 Constitution which contains: (1) "Independence is the right of all nations...because of its incompatibility with humanity and justice". (2) … “Indonesian independence which is independent, united and sovereign, just and prosperous”.(3) … “Promoting general welfare… and also social justice”. (4)….. “The State Structure of the Republic of Indonesia based on social justice for all Indonesian people”. The above principle is basically a formal guarantee of “a sense of justice” and “social justice” for all Indonesian people. Then this explanation is written in Article 24 paragraph (1), Article 28 D paragraph (1) and Article 28 D paragraph (2).

Strictly speaking, Pancasila also states that justice is included in the state's basis as stated in the 2nd principle of just and civilized humanity (related to human rights) and also included in the 5th precept which reads social justice for all Indonesian people (related to welfare and also social justice for all Indonesian people). Every person has the right to live a normal life, has the right to work, and has the right to earn income in accordance with the principles of justice based on Pancasila values.

Judges are required to explore, follow and understand legal values ​​and feelings to provide justice to the community, this is stated in Article 5 paragraph (1) of the Law on Judicial Power. Thus, it can be seen that judges have formal, legal and socio-substantive considerations. Such legal considerations are not only formal-legal-normative but also substantive-moral-justice.

C.     Studies

1.   The Principle of Justice in the Execution of Mortgage According to the Indonesian Legal System

Although the Mortgage Law recognizes its existence, as a renewal of the land guarantee institution, there is no denying the legal problems, between the weak position and position of the debtor before creditors, and the low principal limit of mortgage auctions, which do not reflect the principles of certainty and justice. Debtors who are harmed by the execution and auction are not given space and also legal remedies by the Mortgage Rights Act, thus debtors can get other alternatives related to legal remedies that can be used.

Debtors and creditors can get legal protection in upholding justice related to mortgage rights, namely providing guarantees about legal certainty and justice, but in practice there are many complaints, legal problems, and unfair decisions, so as said by NE, Ahmed Ali is right, quoting Algra in his book "Legal Theory and Judicial Prudence" Whether the case is said to be fair this depends on whether (rechtmitigheid) is in accordance with the personal opinion of the legal assessor. It's best not to say "it's fair", but to I think it's fair, "seeing things as fair is a view of personal value." Therefore, the real distribution justice meant by Aristotle is that in the implementation of Mortgage guarantees, the debtor's rights become the obligations of the creditor, and vice versa. Justice allows the debtor and creditor to get their respective share based on their portion.

A fair prosecution is needed for law enforcement related to the enforcement of mortgage rights. Because the law is a means to achieve justice. Legal products, whether in the form of court decisions or statutory regulations in their implementation, in addition to providing legal certainty and order are required to protect the parties concerned, on the basis of justice and truth. In this case the creditor has the same position of rights. This does not mean that creditors have special rights while debtors have low rights, but both have the same position.

In addition, in Pancasila, the content of the second precept contains the commandment of "just and civilized humanity" translated into respect for human rights, and the fifth precept of the commandment about "social justice for all Indonesian people", which in the sense means economic justice or social justice, or prosperity as a good national policy. The principle of justice based on the values ​​of Pancasila states that everyone has the right to live properly, work and earn an income.

2.   Application of the Principle of Justice in the Execution of Mortgage

One of the functions of mortgage guarantees is that there is legal certainty for creditors (banks) if one day the debtor performs a performance defect at the agreed time. If the debtor cannot pay off his debt to the creditor in this case is a bank, then the mortgage can be disbursed to replace the debt that is not paid by the debtor.

For mortgage guarantees, creditors are only entitled to debts that have not been paid by the debtor, both debts stated in the agreement and debts that arise at a later date after the loan agreement is made, if there is still a balance in the implementation of the mortgage guarantee, then the funds will be returned to the debtor. Article 6 of Law no. 4 of 1996 concerning Mortgage Rights regulates the authority to sell collateral.

Article 6 of the Mortgage Law Number 4 of 1996 stipulates: "If the debtor defaults, the first mortgagee has the right to generally auction the mortgage with his own power and obtain the right to repay the proceeds from the sale. Banks can execute or obtain proceeds from collateral in various ways, which can be based on Article 20 Paragraphs 1 and 2 of Law Number 4 of 1996 concerning Mortgage Rights and Objects related to land. Before Indonesia enacted the regulation on mortgage rights (UUHT 1996 No. 4, effective April 9, 1996), the regulation on mortgages (land security) was regulated in the Civil Code, and Koninlijk Besluit Stb, 1908 No. 452 Amended by Stb. 1937 No. 190.

Execution of a mortgage auction is the alternative most often used by banks as mortgage holders to execute collateral belonging to defaulting debtors. This is because the execution of the auction process is a simple and fast procedure, especially since the creditor/mortgage holder has the right to sell the collateral in accordance with the law without a court order.

The author in this study focuses more on the application of the principle of justice in the implementation of mortgage guarantees, which includes determining the limit that must be included by the bidder when submitting an auction application. In its implementation, the principle of justice in the implementation of mortgages refers to procedural justice which includes all aspects, which is expected to create fair procedural justice for the person being executed, the owner of the auctioned item, and the buyer of the auction item.

In practice, there are many cases where the creditor sets a guarantee limit at a price lower than the fair price or based on the liquidation value, the creditor must optimize the market price before determining the limit based on the liquidation value. In this regard, it seems that all parties have not felt justice. The author is of the opinion that due to the legal vacuum in the “Guidelines for Auction Implementation” in PMK, many cases are found in setting the limit below the fair price, which provides an opportunity for creditors to determine the auction limit. Enforcement of mortgage at a price lower than the fair price will cause the party to lose the debtor (the owner of the item being auctioned). The existence of a situation in which one of the parties is harmed by the existence of a legal vacuum, which indicates that the procedural justice that has been pursued has not been fully realized in the implementation of the mortgage.

D.     Closing

1.   Conclusion

The principle of justice in the implementation of mortgage rights in the Indonesian legal system as stated in Pancasila believes that in the implementation of mortgage guarantees, the debtor's rights are the obligations of the creditor, and vice versa. Justice allows debtors and creditors to get their share of the pie according to their respective share. He did not ask the debtor. The principle of justice based on Pancasila values ​​states that everyone has the right to live a normal life, have a job, and earn an income.

The application of the principle of justice in the implementation of mortgages is actually understood by the existence of the principle of justice in the implementation of mortgages, which is expected to affect all aspects, namely the applicant for execution, meaning procedural justice. This is done for the owner of the auction item and the buyer of the auction.

2.   Suggestion

Based on the conclusions above, there are suggestions from making this paper, namely:

The role of the government must provide legal protection to guarantee mortgage rights resulting from the implementation of auctions and executions so that debtors and creditors function effectively and as widely as possible.

The government should be able to update or amend the “Law of Mortgage Rights" to provide guarantees for debtors and creditors to carry out legal protection arrangements for mortgage guarantees based on the principles of fairness and justice.

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