dc.description.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. | en_US |