ABSTRACT

Mortgage rights are used to guarantee the repayment of a debt or credit

which has been known in the conventional banking system, while in Islamic
banking there is no known debt or credit but financing. Mortgage institutions for
land guarantees in sharia financing also cause problems in the event that
customers cannot fulfill their obligations. In connection with this, there are
several interesting issues to study, among others, how is the encumbrance of
mortgage rights in a financing contract at a sharia bank as a financing guarantee
with sharia principles? how is the synchronization of the execution of mortgage
rights between Law Number 21 of 2008 concerning Islamic Banking (Religious
Court) and Law Number 4 of 1996 concerning Mortgage on Land and Objects
Related to Land ( District Court) ?
In the discussion of this thesis, the author uses a normative juridical
research method which aims to find the principles and basics of positive legal
philosophy, as well as find the law in-concreto. The specification of this research
is analytical descriptive, that is, it does not only describe the problem, but also
analyzes it through the regulations that apply in civil law, especially the law of
guarantees in Islamic banking. Data collection techniques were carried out
through library research and field research to collect primary and secondary
data.
The results of the study conclude that the imposition of mortgage rights in
financing contracts at Islamic banks as financing guarantees with sharia
principles is inappropriate if they still use the concept of mortgages regulated in
Law Number 4 of 1996 concerning Mortgage on Land and Objects Relating to
Land. The procedure for execution of guarantees with sharia principles must be
regulated through the mechanism of legislation that specifically regulates
mortgage rights that have sharia breath so that the imposition of mortgage rights
in financing contracts on sharia banks as financing guarantees is carried out with
correct and good sharia principles.It is important to do this so that the settlement
of disputes between Islamic banks and customers does not conflict with sharia
principles, in accordance with Article 55 paragraph (3) of Law Number 21 of
2008 concerning Islamic Banking. The decision of the Constitutional Court
Number 93/PUU-X/2012 should be the most basic basis in terms of implementing
the execution of mortgage rights through the Religious Courts in addition to other
rules related to sharia banking, but in reality there is dispute resolution between
sharia banking and the customers being examined. through the District Court.
This indicates that there is no synchronization of the implementation of mortgage
dispute resolution between Law Number 21 of 2008 concerning Sharia Banking
through the Religious Courts which is strengthened by the Constitutional Court
Decision Number 93/PUU-X/2012 with Law Number 4 of 1996 concerning
Mortgage on Land and Objects related to Land which are settled through the
District Court.