You are on page 1of 39

BANKRUPTCY LAW

SULISTIOWATI

Bankruptcy
• Provision: Bankruptcy Law 2004, nr. 37 • Bankruptcy is general confiscation upon all of asset of debtor/bankrupt managed and liquidated by receiver under control by supervisory judge which is regulated in this law.

Bankruptcy
• • • • • • The petition for bankruptcy may be submitted by: The debtor; The creditors; The public prosecutor for reason of public interest; Central Bank,in case the debtor: banks; Capital Market Supervisory Body, in case the debtor: Stock Exchange, Clearing and Guaranty Body, Deposit and Settlement Body; • Ministry of Finance, in case the debtor: Insurance Company, Reinsurance Company, Pension Fund, or State Enterprise in Public Service Obligation.

. • To avoid illegal act of debtor by transfering his estate. • To avoid creditor who is willing to get pevilege right upun his right to sell debtor’s estate. • To avoid creditor at the same time asking repayment of his claim from his debtor. • To confiscate debtor’s estate for the benefit of his creditors.The objectives of bankruptcy • Realization of 2 basic principles : articles 1131 and 1132 civil code.

When debtor not paid voluntary for the debt although already exist verdict that punished for the debtor to pay the debt. 3. or because not able to pay all the debts. 2. . so all assets confiscated for sale and the result from sale distributed to all creditors based on the amount of their credits. There’s no consecutive number from the creditor that based on the emergent of credit.Objectives of bankruptcy (cont’d) • Principles that consist in 2 articles : 1. All creditors have same right. except there is a reason to be prioritized.

which is all properties of the debtor are confiscated or freezed for the creditor’s interest or benefit.Objectives of bankrutcy (cont’d) • The objectives of bankruptcy declairation are: (1) to get the general confiscation upon the assets of the debtors. .

Objectives of bankrutcy (cont’d) • (2) Avoid creditor that in the same time ask for re-payment credits from the debtor. Avoid creditor that ask for privilage which is demanded their right to sell the debtor’s goods by them self without gave attention to other creditors. (4) avoid fraudulence that done by the debtor them self. with expectation the creditor not get anything. Debtor hides their assets. Debtor that try to disappear all assets with intention to released their responsibilities toward the creditors. (3). . ex.

• Historically the bankruptcy law was not concerned with benefiting the debtor as much as it was its benefiting the debtor’s creditor. . In its origin. thus preventing them from concealing their property or from paying it to only some of their creditor. the Bankruptcy Law created for imposed the debtor not to obscured their assets.TUJUAN KEPAILITAN (lanjutan) • In US. the law was designed to compel fraudulent debtors to bring their property into court and to pay it to their creditor.

Objectives of bankrutcy (cont’d) • The Bankruptcy Act has several major purpose. The Act also provides the honest debtor with a measure of protection against the demands for payment by creditor. At the same time. the act is designed to protect all of the creditors against action by the debtor that would unreasonably diminish the debtor’s assets to which they are entitled. . Under some circumstances the debtor is given additional time to pay the creditors free of pressure that the creditors might – otherwise exert. If not all. of the debts discharge and thus have a fresh start. One is to assure that the debtor’s property is fairly distributed to the creditors and that some of the creditors do not obtain unfair advantage over the others. If a debtor makes a full and honest accounting of his or her assets and liabilities and deals fairly with the creditors the debtor may have most.

By verdict. • The verdict will be stated by judge. bankruptcy = Inggris ) means strike of payment (insolvency) or stagnancy of payment. .Requirement of bankrupcy • bankrupt ( failliet = Belanda . to fail = Inggris. he will be stated bankrupt. bankrupt. if in brief proven there’s incident or condition of insolvency of debtor • In brief proven means to prove not valid regulation of common evidence (book IV Civil Code). • Requirement for stated bankrupt : debtor in insolvency.

but means that when the debtor proposes bankruptcy. 171/1973/Perd/PTB. • Stagnancy of paying is not necessarily means “near de letter” which is debtor stop at all in paying the debt. Tgl : 31 Juli 1973 ).Requirement of bankrupcy • What’s parameter or norm condition of “insolvency”? • Guidelines that previously agreed : for statement of bankruptcy not necessarily to show that debtor not able to pay all the debt and it’s not important whether or not the stagnancy of payment is as a result from not able to pay or not willing to pay. Paying means fulfill a contract in other word could be in the form of goods. . they are in the condition of not paying the debt (verdict from Bandung Court No. • In Jurisprudence : paying is not always means surrender certain amount of money.

In this condition. it could be stated bankrupt if it has been adjudged a bankrupt. Bankrupt not necessarily shown by the condition of corporation suffered from loss. . not necessarily he can not paid or willing not to paid. Indeed it could happen that the corporation always suffered from loss. it can’t be categorized as a bankrupt. then the debtor is unable to pay its debt.Requirement of bankrupcy • “bankrupt” is unofficial terminology used outside of law. Bankrupt also means the debtor in insolvency.

The condition of one whose circumstances are such that he is entitled to take the benefit of the federal bankruptcy laws. or who has filed a voluntary petition. . “Debtor” is now the term used. The term includes a person againts whom an involuntary petition has been filed. due. municipality) who is unable to pay its debts as they are. or become. The woed “bankrupt” is not used in the federal bankruptcy code. partnership.Requirement of bankrupcy • Bankrupt (United Kingdom): The state or condition of a person (individual. corporation. or who has been adjudged a bankrupt.

Requirement of bankrupcy • In US Law there are 2 types of bankruptcy : unvoluntary and voluntary. to arrange the financial without guarantee and doing business to avoid loss. court appoints temporary receiver having big power and authority to change management. . Just by surrender a proper guarantee so debtor might takeover the management from the receiver. • In US. since the debtor adjudged a bankrupt. The objectives are regularly and fairly payment of all credits.

So : bankrupt is matter of Debtor in condition stagnancy in paying (insolvency). • • 1. Debitur tetap memiliki bisnis dan mengendalikannya. unless court decided not to said so. Debitur dan kreditur diberi cukup banyak kelonggaran untuk bekerjasama. Berkenaan dengan reorganisasi. Not paying one debt of maturity and could be dunned. The Requirement to sentence debtor in bankrupcy? Debtor has more than two or more creditors. not loss. . Debtor still has business dan controled. kecuali pengadilan menentukan lain. 2.Requirement of bankrupcy • Related with re-organization. Debtor and creditor they give a lot of space to cooperated.

shall consist of name and domicile of each firm mambers that severally and joinly liable for all firm’s debt. 3. cooperative. 4. Limited liability company. petitioner only could be proposed based on approval for their couple (wife or husband). Person : women and man. So. . congregation. fondation incorporated. If petitioner in a form of firm. 2. Inheritance. Petitioner is personal debtor that already married.Requirement of bankrupcy • Who could be stated a bankruptcy? 1. married or still single. except not happen mixing of assets. Association or congregation not has other incorporated.

. Dalam hal debitur tidak berkedudukan di wilayah Indonesia tetepi menjalankan profesi atau usahanya di Indonesia. 2. Which commercial court has authority? Court where the debtor domicile.Requirement of bankrupcy • 1. court where legal area firm. In case that debtor already leaving from Indonesia. 5. Dalam hal debitur pesero firma. Pengadilan tempat kedudukan hukum badan hukum sesuai anggaran dasarnya. so court where the last debtor domicile. 3. Dalam hal debitur badan hukum. Pengadilan tempat kedudukan atau kantor pusat debitur menjalankan profesi atau usahanya di wilayah RI. 4. pengadilan tempat kedudukan hukum firma. In case firm debtor.

Central Bank.Requirement of bankrupcy • Every petition in bankruptcy. either filed by debtor or third parties outside of debtor shall be submitted through a lawyer that has a sit licence of court. • The above provision is not valid if the petition submitted by attorney. 37 of 2004). (1) Law No. . Capital Market Supervisory Body. and Ministery of Finance. submitted to commercial court through clerk of the court (article 7 par.

Requirement of bankrupcy • Legal eforts could be submitted? Upaya hukum yang dimungkinkan ? • Adjudication of bankrupt only bared legal efforts: cassation and herziening. . 2. In that verdict there’s a real mistake. there’s new writen evidence which is important. • Herzienning shall fulfill 2 requirements: 1. and if acknowledged in the court session before will be brought in a different petition.

unless law determines others. then all action conducted by receiver previous or at the date of receiver gets a notice on a petition of cancelation.Requirement of bankrupcy • Uit voorbaar bij voorraad ? • All decision on arrangement and/or winding up bankrupt assets decided by judge could be executed in the first place. at moment’s notice receiver could do its duty and authority to arrange and/or liquidate bankrupt assets as from the petition in bankrupt delivered. In case of the petition of a bankrupt canceled arising out of a cassation or herziening. still valid and binding the debtor. eventhough there’s a cassation or herziening. • By brought a petition in bankruptcy. .

• The verdict of witdrawl can be submited a cassation and/or herziening. resultantly cost of secretariat also free.37 of 2004 enable free investigation.Requirement of bankrupcy • Free investigation • Law No. . • After witdrawl stated resubmited a petition of a bankrupt. The witdrawl of verdict on bankruptcy • The verdict publicized by clerk of the court in state of gazette and 2 news papers. therefore debtor or petitioner shall born out the exist of enough assets to pay bankruptcy cost.

(2) monitoring payment to creditor. that related with : 1. Monitoring debtor business. Put guarantee confiscation toward a part of or all assets of debtor. every creditors or attorney could proposed to court. transferred or the guarantee of debtor’s assets in order to get receiver’s approval under condition of bankruptcy (2). 2. • Usually proposal of confiscation would be approved if the interest/benefit of creditor need to be protected.Requirement of bankrupcy • Confiscation by Creditor during court? • Before statement of bankruptcy announced. Appointed temporary receiver to: (1). . therefore the court could determine to ask the debtor to give proper guarantee. Beside that to protect and maintain the interest of debtor and other third party.

either the assets that exist when the bankruptcy stated or during the bankruptcy. • For personal debtor.Requirement of bankruptcy • The bankruptcy consist of : • All assets of debtor that exist at the time of declaration of bankrupt stated and gained during the bankruptcy. the result from bankruptcy also valid for husband and wife that already married in unity of assets. .

04 K/N/1998. . • Dalam praktek permohonan pernyataan pailit sebagian besar dilakukan oleh bank terhadap debitur kreditnya yang macet.KASUS • Dapatkah Bank Rekapitalisasi dan Bank BTO menjadi pemohon pailit ? • Putusan MA No.

dalam kasus kepailitan yang diajukan oleh PT Bank PDFCI sebagai Pemohon pailit terhadap PT. . Oleh karena itu surat kuasa Termohon Kasasi atau Pemohon Pailit harus dengan sepengetahuan atau setidak-tidaknya diketahui oleh BPPN. namun judex factie sama sekali tidak mempertimbangkan keberatan tersebut dalam putusannya. Karena itu judex factie telah melakukan kesalahan dalam penerapan hukum. sejak tanggal 3 April 1998 status Termohon Kasasi adalah bank BTO dan manajemen telah diambil alih atau dikuasai oleh dan berada di bawah BPPN. Sarana Kemas Utama selaku Termohon Pailit. Kebertaan ini sebenarnya pernah diajukan pada sidang pengadilan niaga. Permohonan pailit dikabulkan hakim pengadilan niaga. Menurut Pemohon Kasasi atau termohon pailit.KASUS • Pertama. Persoalan muncul dalam kasasi karena Pemohon Kasasi keberatan atas status Termohon Kasasi/Pemohon Pailit sebagai Bank BTO pada saat permohonan pailit diajukan.

KASUS (lanjutan) • Majelis Hakim Kasasi memandang bahwa Termohon Kasasi atau Pemohon Pailit dalam status Bank BTO tetap sah sebagai Pemohon Pailit. . Karena itu Majelis Hakim Kasasi membenarkan putusan Judex facxtie. Atas putusan ini Pemohon Kasasi atau Termohon Pailit mengajukan PK.q. karena pernyataan BTO sama sekali tidak menghapuskan status Termohon Kasasi atau Pemohon Pailit sebagai badan hukum yang dapat bertindak sebagai pihak dalam proses perkara dan dengan demikian pembuatan surat kuasapun tetap sah dan tidak perlu sepengetahuan dan atau ijin pemerintah c. BPPN.

Pada hal permohonan pailit yang diajukan Termohon PK atau Pemohon Pailit dilakukan pada tanggal 30 September 1998 yaitu pada saat Termohon PK atau Pemohon Pailit sudah berstatus Bank BTO tanpa persetujuan kuasa dari BPPN. . Menurut Pemohon PK atau Pemohon Kasasi atau Termohon Pailit. Permohon PK atau Pemohon Kasasi atau Termohon Pailit kembali mempersoalkan kewenangan hukum atau legal capacity Pemohon Pailit dalam hal ini Bank PDFCI yang telah dikenakan status Bank BTO pada saat mengajukan permohonan pernyataan pailit.KASUS (lanjutan) • Dalam permohonan PK.10 Thn 1998. Dikatakan bahwa Termohon PK atau Termohon Kasasi atau Pemohon Pailit sejak tanggal 3 April 1998 telah menjadi Bank BTO sehingga manajemen dan operasional telah diambil alih oleh BPPN sesuai dengan ketentuan Pasal 37 Ayat (1) UU No. Majelis Hakim Kasasi dan Judex Facxtie telah melakukan kesalahan berat dalam menerapkan hukum mengenai kewenangan hukum Bank BTO.

Karena manajemen dan operasionalnya telah diambilalih atau dikuasai oleh dan berada di bawah pengawasan BPPN. karena menurut Majelis terdapat kesalahan berat dalam menerapkan hukum tentang status dan kewenangan Bank BTO sebab Direksi Bank PDFCI Tbk yang telah dinyatakan dalam status BTO sejak 3 April 1998 tidak lagi memiliki kewenangan untuk melakukan suatu perbuatan hukum ( legal capacity ) termasuk mengajukan gugatan atau permohonan pailit di muka pengadilan untuk kepentingan bank tersebut.KASUS (lanjutan) • Majelis Hakim PK dalam perkara ini membenarkan pendapat yang diajukan Pemohon PK atau Termohon Pailit atau Pemohon Kasasi.04 K/N/1998. Berdasarkan pertimbangan tersebut. . maka surat kuasa yang dibuat Direksi yang menjadi dasar permohonan pailit terhadap Pemohon PK atau Termohon Pailit adalah tidak sah. menurut MA terdapat cukup alasan untuk mengabulkan permohonan PK yang diajukan PT Sarana Kemas Utama selaku Termohon Pailit atau Pemohon Kasasi atau Pemohon PK dan membatalkan Putusan MA 14 Desember 1998 No.

that arise because of a contract or law and compulsory fulfilled by debtor and if not fulfilled it give right to creditor to get the fulfillment from debtor’s assets. .What is the meaning of debt according to Law No. 37 of 2004 • Law No. directly and other obligation that might appear in the future. Article 1 number 6 stated that debt is an obligation mentioned or could be mentioned in the form of money either in IDR or foreign currency.37 of 2004 on Bankruptcy and Cancelation of Payment decides the meaning of “debt”.

based on Law of LLC. should further be investigated wether there’s enough reason to ask liability of the management. . except in the matter of debtor’s liability. If the assets are not enough. the prior party that should be liable to pay the credits is LLC.BANKRUPTCY OF A LEGAL ENTITY • If a limited liability company face a bankruptcy. The steps of settlement similar with personal bankruptcy. • Article 97 par. therefore the settlement should refer to Law of Limited Liability Company (LLC). (1) & (2) Law of LLC : BoC is fully liable upon company management for the benefit and objectives of LLC either to and out of court. • For Limited Liability Company.

each member of the Board of Directors. • . (6) stated that: On behalf of the Company. If the member negligent in performing its duty based on article 97 par. Par. shall jointly and severally liable to all obligations which are remain unpaid from the bankruptcy assets. Based on article 104 par. (2) Law of LLC: The management as referred to in paragraph (1) shall be performed by each member of the Board of Directors with good faith and full responsibility. may submit a claim to a District Court against member of the Board of Directors which causes loss to the Company due to their fault or negligence. and the assets are not sufficient to pay all of the Company’s obligations in connection with such bankruptcy.BANKRUPTCY OF A LEGAL ENTITY (CONT’D) • Article 97 par. in accordance with the provision as referred to in paragraph (2)in accordance with the provision as referred to in paragraph (2). 2 Law of LLC: in the event a bankruptcy as referred to in paragraph (1) occurs due to the fault or negligence of the Board of Directors. the shareholders representing at least 1/10 (onetenth) from the total number of shares with voting right. (3) Law of LLC: Each member of the Board of Directors shall be fully and personally liable over the loss of the Company if it resulted from its fault or negligent in performing its duties.

2. BoC and shareholders are not liable except they did mistake. Should consist essence of fault or negligent from the director. Director is co-liable. . In the case of LLC’s bankruptcy. 3. 4. The liability of director is residual.BANKRUPTCY OF A LEGAL ENTITY (cont’d) Some restrictions on the liability of BoD in the case bankruptcy of LLC: 1. if LLC stated in bankrupt.

therefore all members of BoD assumed doing mistake. Regulation and restriction on the liability of BoD only valid for the bankruptcy of LLC. . unless the member are able to proof that he did not negligent. Severally and jointly liable. If BoD fault. Special treatment principle. but another directors assumed to be liable. Presumption of fault given with inversely proof. eventhough a director did mistake.BANKRUPTCY OF A LEGAL ENTITY (cont’d) 5. 7. 6.

RECONCILEMENT PERDAMAIAN • The debtor eligible to offer a reconcilement to all creditors. . receiver compulsory return all assets (money. • If not decided other. or documents) to the debtor by giving valid receipt. goods. • Receiver compulsory publisizes the reconcilement in state gazette and also at least in 2 news paper. • If homologation of reconcilement already get permanent force of law. book. the bankruptcy is terminated.

CANCELATION OF PAYMENT (CoP) • CoP submitted by Debtor that has more than one creditor or by creditor. • Debtor that unable to continue paying its due and dunned debt. the debtor able to ask CoP. . with intention to submit reconcilement planning that consist of offering a part of payment or all debts to creditors.

• Permanent CoP Permanent CoP given for 270 days. given for 45 days. if on 45th or the date of the creditor meeting has not given yet their votes toward its planning.TWO STEPS OF CANCELATION OF PAYMENT • Ad hoc CoP Commercial court compulsory acceded. .

• During CoP. the debtor without approval from bureaucracy. . unable to conduct managerial act or ownership upon all of a part of its assets. the debtor unable to be forced to pay its debt based on article 245 and all action excecution that already begun to pay off its debt. should be postponed. • CoP not stopped lawsuit that has begun by court or hampered to submit new lawsuit.CANCELATION OF PAYMENT PKPU (lanjutan) • During CoP.

The debtor broke article 240 par. c. The debtor negligent to implement actions that forced by court at the time or after CoP stated or negligent to implement actions as a requirement from the bureaucracy for the benefit of debtor’s assets. The debtor.DISSOLUTION OF CANCELATION OF PAYMENT Based on reguest from supervisory judge. b. CoP could be terminated if: a. (1). performed in bad faith in arranging its assets. . The debtor create loss or has intention to create loss to its creditor. one or more creditors or initiative from court. d. during CoP.

the debtor should be stated bankrupt in the same verdict. the condition of debtor’s assets in fact is no longer possible to further to be proceed by CoP or. • The condition of debtor’s assets unable to fulfill its debts toward creditors on time.CANCELATION OF PAYMENT (cont’d) • During CoP. . • If CoP ended.