Legal Literacy - This article discusses Overlapping Seizure of Bankruptcy Assets Based on the Bankruptcy Law and PKPU with the Criminal Procedure Code. Let's take a look!
Bankruptcy based on Law of the Republic of Indonesia Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations is a general seizure of all the assets of the bankrupt Debtor, the management and settlement of which is carried out by the Curator under the supervision of the supervisory judge. Meanwhile, bankruptcy is a condition in which the Debtor is unable to make payments on the debts of his Creditors. The inability to pay is usually caused by the difficult financial condition (financial distress) of the Debtor's business which has experienced a decline.
Bankruptcy is a step or method taken by the Creditor in requesting accountability from the Debtor in terms of paying off debts through general confiscation. After the bankruptcy decision is handed down, the bankrupt party immediately loses the right to manage and control over his assets, all of his assets will become the Seized Bankruptcy Assets.
Seized Bankruptcy Assets can also be referred to as bankruptcy assets, as defined above, are the assets of a person or organization that has been declared bankrupt. In the end, these assets are controlled by the Bureau of State Assets. Furthermore, these bankruptcy assets will be settled by the curator under the supervision of the supervisory judge.
The settlement can only be carried out after the bankrupt debtor is truly in a state of insolvency after a bankruptcy declaration is issued, or known as insolvency.
In Article 21 of the Law of the Republic of Indonesia Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, it is stated that bankruptcy includes all of the debtor's assets at the time the bankruptcy declaration decision is pronounced, as well as anything acquired during the bankruptcy. Thus, bankruptcy assets also include anything (assets) acquired during the bankruptcy.
Referring to Article 16 of the Law of the Republic of Indonesia Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, the authority of the curator to manage and/or settle begins on the date the bankruptcy decision is pronounced, even if a cassation or review is filed against the decision by interested parties.
Law of the Republic of Indonesia Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations does not define what is meant by attachment or seizure, but Law of the Republic of Indonesia Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations regulates two forms of attachment, namely security attachment and general attachment.
According to Article 10 of the Law of the Republic of Indonesia Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, security attachment is an attachment carried out on part or all of the debtor's assets to protect the interests of the creditor.
The security attachment will end as soon as the judge decides on bankruptcy or permanent Suspension of Debt Payment Obligations (PKPU). As soon as the judge decides on bankruptcy, a general attachment automatically applies to all of the debtor's assets.
The purpose of general attachment is almost the same as the purpose of civil attachment in general, which is to prevent the debtor from taking actions that are detrimental to the creditors, such as hiding or diverting assets, but there is only one specific purpose of bankruptcy, which is to prevent creditors from seizing the debtor's assets.
Attachment according to the Criminal Procedure Code (KUHAP), Article 1 number 16 of the Criminal Procedure Code states that "seizure is a series of investigator actions to take over and or store under his control movable or immovable objects, tangible or intangible for the purpose of evidence in investigation, prosecution and trial". From the definition regulated in Article 1 number 16 of the Criminal Procedure Code, seizure has two forms of action, namely taking over and storing under control. The act of taking over is interpreted as a legal act, while the act of storing under control is interpreted as a material or physical act.
Attachment in criminal law is a seizure carried out on movable / immovable property belonging to a person, to obtain evidence in a criminal case. Seizure is a series of investigator actions to take over and / or store under his control movable or immovable objects, tangible or intangible for the purpose of evidence in investigation, prosecution and trial.
Based on Article 39 paragraph (1) of the Criminal Procedure Code, the objects that can be subject to seizure are:
- Objects or receivables of the suspect or defendant that are wholly or partially suspected of being obtained from a criminal act or part of the proceeds of a criminal act;
- Objects that have been used directly to commit a criminal act or to prepare it;
- Objects that are used to obstruct the investigation of a criminal act;
- Objects that are specifically made or intended to commit a criminal act;
- Other objects that have a direct relationship with the criminal act committed.
Article 39 paragraph (2) which reads “Objects that are under seizure due to civil cases or bankruptcy can also be confiscated for the purpose of investigation, prosecution and adjudicating criminal cases, as long as they meet the provisions of paragraph (1)â€.
The law stipulates that criminal confiscation has a higher public interest than individual interests in civil cases. Therefore, the interests of the plaintiff as the applicant and holder of revendication seizure, guarantee seizure, general seizure in bankruptcy must be set aside to protect the public interest, by confiscating the goods in criminal cases, if the goods in question meet the category described in Article 39 paragraph (1) of the Criminal Procedure Code.
Then the question is, can the curator file a lawsuit for cancellation of the criminal confiscation? Confiscation by the curator is contained in Law of the Republic of Indonesia Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, while confiscation by investigators is contained in the Criminal Procedure Code.
The curator can file a lawsuit for cancellation of the criminal confiscation to the Commercial Court to impose a general seizure on the bankrupt's assets that have been previously subjected to criminal confiscation by the investigator. The Commercial Court in this case has absolute competence to examine and decide on bankruptcy matters and other matters related to bankruptcy.
The conflict between general bankruptcy seizure and criminal seizure is a form of other matters related to bankruptcy, because the conflict is contesting the seizure status of the same object, namely the debtor's assets that have been declared bankrupt through a decision of the Commercial Court, so that the legal status of these assets becomes bankrupt assets.
In addition, the curator's rights arise on the basis of a decision from the Commercial Court, so that everything done by the curator, whether in order to lift the criminal confiscation of the debtor's rights, must obtain approval from the Commercial Court through a legal product in the form of a decision.
In addition, if the bankrupt's assets are confiscated criminally to become evidence in court, the judge in deciding the status of the confiscated goods must truly determine the ownership status of the confiscated goods.
So that if the bankrupt's assets that have been previously confiscated criminally but the crime is not proven, then they must be returned to the bankrupt's assets in the context of general confiscation. However, conversely, if it can be proven that the assets originated from or were used from the proceeds of crime, then in the interests of the law the assets are confiscated for the state or confiscated for destruction.
As in the Supreme Court Decision No. 156K/Pdt.Sus-Pailit/2015, in its considerations the Supreme Court has an opinion regarding confiscation, and the sentence is as follows “That because the confiscation carried out by the Cassation Respondent was carried out based on a criminal investigation, the cancellation of the confiscation must be carried out through the provisions regulated in the Criminal Procedure Codeâ€.
The existence of overlap between bankruptcy law regarding general seizure with Seizure by investigators has legal consequences that are very detrimental to creditors if there are bankrupt assets seized by investigators.
To determine which seizure should take precedence, it is necessary to consider the balance between the interests that must be protected, and to provide legal certainty for the public, in this case the creditors.
If the criminal seizure is applied first, a violation of the rights of creditors will occur, who should receive repayment of bankrupt assets but cannot be settled immediately because they have to wait for the criminal case to be completed. Meanwhile, if the general seizure is determined first, the curator can carry out their duties to begin settling the bankrupt assets.
Comments (0)
Write a comment