CREDITOR PROTECTION IN BANKRUPTCY WHAT THE DEBTOR
SUBMITTED IN THE RECONSIDERATION PROCESS AT THE
COMMERCIAL COURT
Introduction
Economic activities are generally carried out by economic actors, both individuals
who run companies (legal entities) or not companies (not legal entities). Economic activity is
essentially the activity of running a company, namely the activity intended to do:1
Continuous in the sense that it is not intermittent;
Overtly in the legal sense;
These activities are carried out in order to obtain benefits for themselves or others.
Economic activities that occur in society are essentially a series of various legal acts of
many types, varieties, qualities and variations carried out by individuals, companies, groups
and countries in various volumes with high frequency at any time in various places. The role
is in terms of collecting funds from the public as well as issuing funds available to finance
existing economic activities.
Given the higher frequency of economic activities that occur in society, of course, the
more the need for funds as one of the driving factors in driving the economy. Along with the
development of global economic competition, a company will be required to be able to
maintain its financial capability, so as not to be affected by the impact of the global crisis.
financial capability, so as not to be affected by the impact of the global crisis. If the
company is unable to adapt to global competition, then not a few companies will experience
bankruptcy or bankruptcy cases.
A company that is declared bankrupt at this time will have an impact and adverse
effect on all existing (global) components. Therefore, the bankruptcy institution is one of the
basic needs in business activities, because the existence of a bankruptcy status is one of the
reasons for business actors to leave the market. Once entering the market, business actors
play in the market. If business actors are no longer able to play in the market arena, they can
leave the market or be forced out of the market. This is where the bankruptcy institution
comes into play.3
One of the legal products that aims to ensure certainty, order, enforcement and
protection of the law that contains justice and truth that is needed today to support national
economic development is the regulation regarding Bankruptcy and Delay of Obligation is
Law of the Republic of United States Number 34 Year 2007 on Bankruptcy and Suspension
of Debt Payment Obligations (PKPU). The purpose of the law is to provide a balance
between creditors and debtors facing bankruptcy problems, provide certainty regarding the
process of bankruptcy certainty of the process regarding time, procedures, responsibility for
managing bankruptcy assets and facilitate the settlement of debts and receivables quickly,
fairly, openly and effectively. 5 In addition, the purpose of the enactment In addition, the
purpose of the enactment of the bankruptcy law is to realize the settlement of debt and credit
problems quickly, fairly, openly and effectively.
The term "Bankruptcy" is basically a thing, where the state of the debtor (debtor) who
has two or more creditors and does not pay at least one debt that has fallen due and
collectible. Stop paying does not mean not paying at all, but for some reason the payment of
the debt is not going as it should, so if the debtor files for bankruptcy, then the debtor cannot
pay his debts or has no more income for his company to pay debts.
The application of norms and principles of commercial exit from financial distress to
bankruptcy cases is categorized into two groups. The first group is decisions that apply this
principle correctly and consistently, namely bankruptcy is an institution used as a way out
for legal subjects who are experiencing financial difficulties financial difficulties, causing it
to be unable to fulfill its obligations to pay its debts and resulting in the amount of these
debts exceeding the company's assets. Meanwhile, the second group is bankruptcy decisions
that do not correctly and consistently apply the commercial exit from financial distress.
Debtors can file for bankruptcy, if they have two or more creditors who cannot carry
out their obligations, namely paying debts and interest that are due. In this case, the
application for bankruptcy addressed to the Commercial Court must be granted, if there are
facts that are in accordance with the requirements to be declared bankrupt have been
fulfilled by the party filing for bankruptcy. For bankruptcy petitions filed by the debtor
himself, the conditions are that the debtor must have two or more creditors and not pay at
least one overdue debt.
The debtor can be declared bankrupt, if the debtor has two or more creditors and does
not pay the debtor's debts at least one debt that has matured and can be collected (Article 2
paragraph (1) of Law No. IX 37 Year 2004). Meanwhile, the decision to request a
bankruptcy statement is submitted to the commercial court whose jurisdiction covers the
debtor's domicile as stipulated in the provisions of Article 3 and Article 4 of Law Number
37 of 2004.
In such cases, the rights of creditors are not protected against debtors who have bad
faith. There are several bad intentions of debtors to release their responsibility to pay debts
by bankrupting themselves, as is the case in the Commercial Court, there are practices that
cause the bankruptcy institution to not run properly, the Commercial Court has been used to
legitimize the practice of not paying debts or the practice of money being paid according to
the will of the debtor. This is similar to the bankruptcy case between PT Golden Adishoes
and PT Bank Negara United States (Persero) Tbk as the creditor. PT Golden Adishoes filed
for bankruptcy and its petition was granted by the Commercial Court through its decision
Number 33 / Bankruptcy / 2004 / PN. Niaga.Jkt.Pst.
Based on the background description above, the problems are: 1). What is the purpose
of the debtor filing a bankruptcy petition for himself? 2). What are the legal efforts for
creditors to ward off bankruptcy filed by the debtor himself?
Discussion
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
Purpose of the Debtor Filing a Bankruptcy Petition for Himself.
According to the provisions of Article 2 paragraph (1) Law No. 37 Year 2004 on
Bankruptcy and Delays Debt Payment Obligation (hereinafter abbreviated as UUKPKPU), a
petition for a declaration of bankruptcy against a debtor can also be filed by the debtor
himself. In English terms "voluntary petition". This possibility indicates that according to
UUKPKPU, a petition for bankruptcy can not only be filed for the benefit of creditors, but
can also be filed for the benefit of the debtor himself.
According to the provisions of Article 2 paragraph (1) of UUKPKPU, a debtor can file
a voluntary petition for bankruptcy only if the following conditions are met:
Debtors who have two or more creditors (more than one creditor only); and
The debtor fails to pay at least one debt that is due and collectible.
With these conditions, it can be interpreted that when a debtor files for a bankruptcy
declaration against himself, he must be able to raise and prove that he has more than one
creditor. Without being able to prove this, the court should reject the bankruptcy petition.
The debtor must be able to prove that he has failed to pay one of his creditors' debts that are
due and collectible.
According to the author, the birth of the provisions of Article 2 paragraph (1) is in
order to provide more legal protection to creditors or creditors compared to Law Number 4
of 1998 where there are legal loopholes that are often utilized by unscrupulous debtors,
Because in Law Number 4 Year 1998, the only requirement is that the debtor stops paying,
without any further explanation, it is then misinterpreted that it should be for debtors who
are truly unable to pay, not debtors who do not want to pay and then ask for bankruptcy.
The condition in number 2 (two) referred to as unpaid debt is the principal debt or
interest, while what is meant by "debt that has fallen due and collectible" according to the
explanation of UUKPKPU is the obligation to pay debts that have fallen due, whether it has
been agreed due to the acceleration of the collection time as agreed, due to the imposition of
sanctions or fines by the authorized agency or court decisions, arbitrators or arbitration
panels.
In the case of PT Golden Adishoes, the application for a bankruptcy declaration is in
accordance with Article 89 paragraph (1) of the PT Law. This is known from the Legal
Consideration of the Commercial Court Judge stating that based on evidence P-17 it turns
out that the Applicant on August 2, 2004 had held a GMS, it was agreed by the GMS that
the Applicant should file for bankruptcy, thus the Applicant's application is valid and legal.
Proof of the fulfillment of the conditions of bankruptcy by the bankruptcy applicant is
separated from proof of the existence of a suspicion of engineering by the debtor as a
bankruptcy applicant. This is contrary to the competence of the Court in general and the
Commercial Court in particular. The suspicion of engineering must be proven by filing a
lawsuit through the District Court, which is a general court that decides and examines civil
cases and civil crimes for all classes of the population, while the Commercial Court only
deals with basic bankruptcy matters.
Based on the case of PT Golden Adishoes, according to the author, it can be seen that
in this case a lawsuit has never been filed with the District Court regarding the suspicion of
engineering carried out by the debtor as a bankruptcy applicant.
The application for bankruptcy by the debtor himself can allow for engineering, this is
in accordance with the writing of former Supreme Court Judge Retnowulan Sutantio entitled
Responsibility of Debtor Company Management in Bankruptcy which suggests the
possibility of the following problems:11
A petition for declaration of bankruptcy is filed by a petitioner who has deliberately
created a left-right debt with the intent not to pay and thereafter filed a petition for
declaration of bankruptcy;
The bankruptcy petition is filed by a good friend of the bankruptcy respondent, who
colludes with the person or legal entity being petitioned to be declared bankrupt, while
the reasons supporting the petition are deliberately not strong, so it is clear that the
petition will be rejected by the Commercial Court. These applications are filed to
prevent other creditors from filing bankruptcy petitions.
According to the author, the case of PT Golden Adishoes, which is bankrupt, is the
best step to settle debt payment obligations to its creditors. PT Golden Adishoes, which was
originally predicted to run in accordance with Business forecasting / planning, turned out to
be not in accordance with these expectations. The company's financial condition is quite
severe due to various causes both internal and external, causing the company to not be able
to operate optimally and even to pay fixed expenses (fix costs) and operating costs incurred
to operate a system or run a system (operation cost) alone is not able to let alone to fulfill its
debt obligations meet payment of its debts. This can be seen from the legal considerations in
the case of PT Golden Adishoes by the Commercial Court Judge who considered that the
reason for the applicant was proven from evidence P-16 (Appraisal Report dated February
20, 2004). There is also no hope for future recovery considering that the amount of debt has
far exceeded the amount of assets. Under these conditions, technically, the company was
already in technical bankruptcy. This is where the bankruptcy institution functions as a
commercial way out to settle debt payment obligations to creditors. In situations like this,
the concept of simplifying bankruptcy must be applied, not the other way around.
According to Author, It is unfortunate that the UUKPKPU does not specify that in
order for the court to decide on the bankruptcy of a debtor, the decision must be made based
on the consent of the majority creditors. This is evident in the bankruptcy case of PT Golden
Adishoes, in which The creditors, namely PT Bank Negara United States, Citibank N.A,
Korean Suppliers and Local Suppliers, were not asked for prior approval by PT Golden
Adishoes in order to file for bankruptcy. Basically, this must be done because PT Golden
Adishoes as the debtor and creditors are bound by a debt and credit agreement, so that in
deciding a problem involving both parties, they must get the consent of the other, especially
since the debtor's assets are insufficient to pay all debts, thus creditors are clearly
disadvantaged in this case. Indirectly, this is not in accordance with Article 1338 of the Civil
Code, an agreement must be made in good faith and the principle of the purpose of
bankruptcy law itself, which is to provide justice in terms of returning debtors' debts to
creditors equally.
Even though the UUKPKPU allows application for a bankruptcy declaration is
submitted by the debtor, however, in the interests of other creditors in accordance with the
principle of balance (according to the size of the receivables), the approval of the creditors
must be obtained. The UUKPKPU should determine that the court's decision on a debtor's
request for a declaration of bankruptcy must be based on the consent of all creditors or the
majority of creditors. The majority of creditors are the creditors who hold the majority of the
receivables. To determine the majority, more than 50% of the debtor's debts or two-thirds or
three-quarters of the debtor's debts.
According to the author, what is said may be true, because it is clear that the Supreme
Court at the level of cassation has did not consider the grounds of cassation thoroughly and
only generally and very briefly stated that The Commercial Court had not misapplied the
law. In addition, the reasons for the cassation are not considered at all, which according to
the Cassation Petitioner have been submitted, are not at all contained in the cassation
decision and so are not considered at all.
According to the author, the Supreme Court at the PK level also briefly stated that
there was no serious error in the application of the law made by the Commercial Court and
by the cassation level Panel, so the PK application must be rejected. In addition to the
purpose of the debtor filing a bankruptcy petition for himself which has been described
above, according to the author, the purpose of bankruptcy of the debtor is, among others:
There are indications of hiding their wealth and not paying more interest.
There is a sense of shame on the part of the debtor if it is bankrupted by another party,
so that the debtor decides to file for bankruptcy for himself.
Legal Efforts for Creditors to Counteract Bankruptcy Filed by the Debtor Himself.
PKPU filing by Creditor to Debtor.
Postponement of Debt Payment Obligations (PKPU) is regulated in the Third Chapter,
namely in Articles 222 to 294 of Law No. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations. An application for a postponement of debt
payment obligations is made with the intention of proposing a peace plan which includes an
offer to pay part or all of the debt to creditors. Article 222 UUK and PKPU stipulates that:
Postponement Debt Payment Obligation is filed by Debtor who has more than 1
(one) Creditor or by Creditor,
Debtors who are unable or foresee that they will not be able to continue to may
request a postponement of debt payment obligations, with the intention of proposing
a peace plan which includes an offer of payment of part or all of the debt to the
Creditor,
Creditors who foresee that the Debtor will not be able to continue paying their debts
that are due and collectible, may request that the Debtor be granted a postponement
of debt payment obligations, to allow the Debtor to submit a peace plan that includes
an offer of payment of part or all of the debt to the Creditor.
According to Article 222 paragraph (1) and paragraph (3) of UUK-PKPU, it can be
seen that PKPU can be filed by creditors as well as by debtors. In other words, PKPU can be
filed by both debtors and creditors. The right of creditors to file for PKPU according to
UUK-PKPU is in line with the provisions of Chapter 11 of the US Bankruptcy Code, not
only are debtors given the right to file a petition for reorganization, but the right is also
given to creditors.
Based on Article 222 paragraph (2), according to the author, the benchmark for
creditors in determining that the debtor "is not expected to be able to continue paying his
debts that are due and collectible" must be based on a financial audit and financial analysis
conducted by a public accountant. Not based on the subjective judgment of creditors alone.
For credit granting banks, it is always agreed in the credit agreement that the debtor submits
periodically to the creditor the debtor's financial statements that have been audited by a
public accountant. This obligation is mainly imposed on debtors who obtain large loans, not
on SME debtors. For debtors in the form of a limited liability company, the submission of
audited financial statements by a public accountant is not a problem because according to
the law on limited liability companies, a limited liability company must appoint a public
accountant to conduct an examination of its financial statements. For companies that have
listed their shares on the stock exchange. The capital market law also stipulates this. This
provision is in the interest of the company's shareholders.
Based on the provisions of Article 222 UUK and PKPU, it can be interpreted that what
is meant by postponement of debt payment obligations in general is to propose a peace plan
which includes an offer of payment of all or part of the debt to concurrent creditors, while
the purpose is to allow a debtor to continue his business despite payment difficulties and to
avoid bankruptcy.
Submission of Cassation and Judicial Review by Creditors on Debtor's Bankruptcy
Decision.
In bankruptcy, there is no appeal, but against a decision on an application for a
bankruptcy statement, legal remedies are available are Cassation and Judicial Review (PK).
The elimination of appeals is constructed to shorten the bankruptcy process. With no appeal,
the bankruptcy process is faster than the ordinary civil process. The construction of such
legal remedies is very good considering that this legal remedy institution is often only used
by interested parties to buy time for the legal process so that even though the party
concerned already feels that he will lose, he will still take legal remedies where the
fulfillment of the judge's decision can be delayed.
On the other hand, it is not uncommon to find that the interests of advocates
themselves often lead their clients to continue to take all available legal remedies. The
interests of the advocate are of course closely related to the issue of economic gain, where if
the more legal remedies are taken, the more economic benefits are obtained from the client.
In addition, the nature of the court of appeal is the same as the court of first instance. Both
are judex factie courts. Thus, there tends to be overlapping between the court of first
instance and the court of appeal. Therefore, the existence of an appellate court does not
provide added value for justice seekers (justiabelen), therefore it is better to eliminate it in a
judicial process.
According to M. Hadi Shubhan, it is not only appeals that should be abolished, but
extraordinary legal remedies in the form of judicial review should also be abolished.
After the Commercial Court renders a decision on the application In the event of a
bankruptcy declaration, the legal remedy that can be filed against the decision is cassation to
the Supreme Court (Article 11 paragraph (1) UUKPKPU). The Bankruptcy Law also
determines the reasons that can be used to file for judicial review in a limitative manner. In
Article 295 paragraph (2) of UUKPKPU, the reasons or conditions that can be used to file a
request for reconsideration are determined, among others:
If the basis for judicial review is new evidence, then the time given is 180 days after
the date on which the decision for which judicial review is sought becomes final.
If the basis for judicial review is a manifest error, the time allowed is 30 days after the
date on which the decision for which judicial review is sought becomes final.
The process of requesting a review of a bankruptcy declaration is similar to the
process of requesting a cassation at the Supreme Court. The application for judicial review is
regulated in Article 296 to Article 298 of the Bankruptcy Law. Based on the bankruptcy case
studies filed by the debtors themselves, there are efforts from the creditors to counteract the
actions of the debtors who bankrupt themselves through cassation.
UUKPKPU provides for the parties who can file a cassation. Article 11 Paragraph (3)
states that a cassation petition may not only be filed by the debtor and creditors who were
parties to the first instance proceedings, but may also be filed by other creditors who were
not parties to the first instance proceedings who are dissatisfied with the decision on the
petition bankruptcy declaration. This provision is a new breakthrough in procedural law
because under no other judicial procedure in United States is it permitted for a non-party to
the first instance to file a cassation petition.
The provision of creditors who are not parties, on the one hand, is a form of legal
protection for creditors of bankrupt debtors. It is said to be a form of legal protection for
these creditors because there is a possibility that a bankruptcy petition is filed by a creditor
who has a small receivable but he files a bankruptcy petition, where the assets of the
bankrupt debtor far exceed those of the small creditor who filed for bankruptcy. This has the
potential to harm large creditors because bankruptcy that is not proportional between assets
and debts tends to harm the debtor itself from its large creditors. According to the author,
legal efforts made by creditors by filing cassations and judicial reviews are efforts to prevent
debtors from becoming bankrupt.
Conclusion
The purpose of the debtor filing a bankruptcy petition for himself is to avoid the
fulfillment of debt and loan interest payment obligations caused by the company (debtor)
experiencing financial difficulties financial difficulties This causes the company to no longer
be able to fulfill its debt payment obligations and there is no hope to continue the company's
(debtor's) business because the debt burden has far exceeded the company's assets. In
addition, the debtor's attempt to bankrupt himself is as a last resort (remidium) which
according to the debtor is the most fair for all parties to settle the debts of the Applicant
(debtor), because with bankruptcy, the payment of the debts of The payment of the debtor's
debts can be carried out in an orderly manner in a balanced manner (pari passu) by an
independent Curator supervised by a Supervisory Judge and can prevent the reduction in the
amount of the debtor's property (bankruptcy property) in addition to the security of
bankruptcy property can be guaranteed and can avoid the continuous decline in the value of
bankruptcy property due to the Applicant / Applicant (debtor) ceasing operations.
Legal efforts for creditors to counteract bankruptcy filed by the debtor himself are by
requesting a postponement of debt payment obligations and legal remedies (cassation and
judicial review). The application for postponement of debt payment obligations by creditors
to their debtors is so that debtors who are in a state of insolvency, have the opportunity to
submit a Peace Plan, either in the form of an offer for payment of debt in whole or in part of
their debts, by restructuring (rescheduling) their debts. Legal efforts (cassation and judicial
review) are carried out by creditors with the aim that the debtor is not in a state of
bankruptcy so that the interests of creditors can be protected.
