KONTRADIKSI HAK ISTIMEWA KREDITOR PEMEGANG HAK TANGGUNGAN DALAM UNDANG – UNDANG KEPAILITAN

Abstract

Bankruptcy is a general seizure and execution towards the debtor’s wealth for the interest of all creditors. According to Act No. 37/2004 about Bankruptcy, creditor consists of competitor creditor, preferred creditors, and separatist creditor. Creditor whose holding mortgage right is a type of separatist creditor, which according to KUH Perdata Article 1133, Article 1134, Article 1155 jo Article 1178 (2) has the right to execute the mortgage object on his own power without intervention. Parate Executie principles as found on KUH Perdata is in accordance with Article 6 and Article 20 Act No. 4/1996 about Mortgage Right, which the separatist creditor is authorized to make their own execution if there is any default and bankruptcy. However, these principles are inconsistency with Article 55, Article 56, Article 59 of Act No. 37/2004 about Bankruptcy inconsistency. This research is aimed to analyze the principle of separatist creditor and its rights, in particular for creditor that holding mortgage right in bankruptcy, and to analyze the synchronization of those three Acts to determine the most suitable Act to be implemented in case. This research method that used is normative juridical as efforts to find the solution of the problem by researching and reviewing the positive Act norms by conducting library research. The results of the research showed that contradiction between KUH Perdata and Act No. 4/1996 about Mortgage Right to the Act No. 37/2004 about Bankruptcy can be resolved by judges use the interpretation of the Act, lex specialis derogate legi generalis principle. KUH Perdata as the general rule is put aside by Act No. 37/2004 about Bankruptcy and Act No. 4/1996 about Mortgage Right because they are specific rules. Act No. 37/2004 about Bankruptcy ruled about assets - assets of debtor and the solution way to the creditors while Act No. 4/1996 about Mortgage Right ruled more specific about creditor whose holding mortgage right the solution way when it comes to debtor’s bankruptcy. Therefore, based on the lex specialis derogate legi generalis principle, judge will be more accurate to apply Act No. 4/1996 about Mortgage Right regard to the right of creditor whose holding mortgage right.