Understanding Fiduciary Guarantee

Oct 13, 2025 by recoveryshake.com 74 views

Introduction

The banking institution plays a crucial role in the development of a country, serving as a vital funding source for various projects and initiatives. As a result, the main task of banks is to raise funds from the community and channel them in the form of credit. To ensure that borrowing and lending transactions can run smoothly, the practice in the field recognizes the importance of guarantees or collateral submitted by the debtor to the creditor. This guarantee serves to ensure that the debt will be paid according to the agreement, and if the debtor breaks the promise, the object that is used as a guarantee can be sold by the creditor to replace the unpaid debt.

Understanding Fiduciary Guarantee

Fiduciary guarantees are one of the guaranteed instruments commonly used in this context. This type of guarantee allows fiduciary providers to continue to control the guaranteed object, so that they can carry out business activities funded by loans using the guarantee. In this case, what is submitted is only ownership rights to the object juridically, with a concept known as constitutum possessorium. Fiduciary guarantees are given in the form of a certain appointment or transfer of material. If the debtor fails to meet the obligation within the specified time period, the creditor has the right to sell the guarantee object through the auction, and get the repayment in advance from the sale, outperformed other creditors (Droit de Preference).

Legal Consequences of Non-Compliance

It is essential to understand what legal consequences arise if the debtor does not carry out its obligations. Through a descriptive analytical research conducted at KP2LN Medan, it was found that the legal consequences for debtors who did not meet their obligations were creditors had the right to sell fiduciary guarantees with their own power. This is caused by the position of the creditor which is prioritized by laws and fiduciary guarantees that have executorial power.

Challenges in Executing Fiduciary Guarantees

However, the implementation of the execution of fiduciary guarantees is not always smooth. There are several obstacles that must be faced, one of which is to carry out the execution title, creditors must go through auction process with parate execution. This process has two main requirements: Debitors must define and there must be a fiduciary guarantee certificate. In addition, sales under the hand also have quite heavy requirements to be carried out, which often makes it difficult for creditors to execute their rights.

Protection of Creditors with Fiduciary Guarantees

Protection of creditors with fiduciary guarantees is regulated in Law Number 42 of 1999. Article 1 point 2 of the law gives a position that is prioritized to fiduciary recipients above other creditors, and this rights will not be lost despite bankruptcy or liquidation in the giver Fiduciary. In addition, this law also requires registration of fiduciary guarantees to avoid possible the same object is a guarantee for other creditors. This ensures that the creditor who first registered fiduciary guarantees would be recognized as the party entitled to the object.

Optimizing Protection of Creditors

To optimize this protection, it is recommended that those who use fiduciary guarantees always register for every guarantee deed at the Fiduciary Registration Office. In addition, it is important to conduct "clean check" on fiduciary guarantees before registering, in accordance with Article 18 of the law. For legal practitioners, it is essential to be consistent in applying the provisions set out in the law. The Fiduciary Registration Office also needs to check each registration application in order to ensure that the same object is not registered by other parties.

Improving Human Resources and Infrastructure

In dealing with various challenges that arise, it is crucial for the Fiduciary Registration Office to improve human resources and existing infrastructure. Thus, the problems in the registration and execution process of fiduciary guarantees can be resolved efficiently. Protection of creditors with fiduciary guarantees is an important element in a healthy financing system, and requires attention and support from all related parties.

Conclusion

In conclusion, the protection of creditors with fiduciary guarantees is a crucial aspect of a healthy financing system. The implementation of Law Number 42 of 1999 provides a framework for the protection of creditors, but it also requires the improvement of human resources and infrastructure to ensure that the registration and execution process of fiduciary guarantees can be carried out efficiently. By understanding the importance of fiduciary guarantees and the legal consequences of non-compliance, creditors can take necessary steps to protect their rights and interests.

Q1: What is a fiduciary guarantee?

A1: A fiduciary guarantee is a type of guarantee that allows the fiduciary provider to continue to control the guaranteed object, while still providing security for the creditor in case the debtor fails to meet their obligations.

Q2: What is the purpose of a fiduciary guarantee?

A2: The purpose of a fiduciary guarantee is to provide security for the creditor in case the debtor fails to meet their obligations, while still allowing the fiduciary provider to continue to control the guaranteed object.

Q3: What are the benefits of using a fiduciary guarantee?

A3: The benefits of using a fiduciary guarantee include:

Providing security for the creditor in case the debtor fails to meet their obligations
Allowing the fiduciary provider to continue to control the guaranteed object
Providing a framework for the protection of creditors
Encouraging the use of fiduciary guarantees in business transactions

Q4: What are the requirements for registering a fiduciary guarantee?

A4: The requirements for registering a fiduciary guarantee include:

The debtor must define the object to be guaranteed
There must be a fiduciary guarantee certificate
The registration must be made at the Fiduciary Registration Office
The registration must be made in accordance with Article 18 of the law

Q5: What are the consequences of non-compliance with the requirements for registering a fiduciary guarantee?

A5: The consequences of non-compliance with the requirements for registering a fiduciary guarantee include:

The creditor may not be recognized as the party entitled to the object
The creditor may not have priority over other creditors
The debtor may not be held liable for the debt

Q6: How can creditors protect their rights and interests with fiduciary guarantees?

A6: Creditors can protect their rights and interests with fiduciary guarantees by:

Registering the fiduciary guarantee at the Fiduciary Registration Office
Conducting a "clean check" on the fiduciary guarantee before registering
Ensuring that the debtor defines the object to be guaranteed
Ensuring that there is a fiduciary guarantee certificate
Ensuring that the registration is made in accordance with Article 18 of the law

Q7: What is the role of the Fiduciary Registration Office in protecting creditors with fiduciary guarantees?

A7: The role of the Fiduciary Registration Office in protecting creditors with fiduciary guarantees includes:

Registering fiduciary guarantees
Checking each registration application to ensure that the same object is not registered by other parties
Ensuring that the registration is made in accordance with Article 18 of the law
Providing a framework for the protection of creditors

Q8: How can the Fiduciary Registration Office improve its services to protect creditors with fiduciary guarantees?

A8: The Fiduciary Registration Office can improve its services to protect creditors with fiduciary guarantees by:

Improving human resources and infrastructure
Ensuring that the registration process is efficient and effective
Providing clear and concise information to creditors about the registration process
Ensuring that the registration is made in accordance with Article 18 of the law

Q9: What are the benefits of improving the services of the Fiduciary Registration Office?

A9: The benefits of improving the services of the Fiduciary Registration Office include:

Ensuring that the registration process is efficient and effective
Providing clear and concise information to creditors about the registration process
Ensuring that the registration is made in accordance with Article 18 of the law
Encouraging the use of fiduciary guarantees in business transactions

Q10: How can creditors and the Fiduciary Registration Office work together to protect creditors with fiduciary guarantees?

A10: Creditors and the Fiduciary Registration Office can work together to protect creditors with fiduciary guarantees by:

Ensuring that the registration process is efficient and effective
Providing clear and concise information to creditors about the registration process
Ensuring that the registration is made in accordance with Article 18 of the law
Encouraging the use of fiduciary guarantees in business transactions