PENCAIRAN BANK GARANSI BILA TERJADI WANPRESTASI

Abstract

The performance of national development in many regions in Indonesia is an attempt from the state to achieve and increase the prosperity and welfare of the peopleof Indonesia. The performance of national development is carried out by a construction services provider, these conditions may lead to the possibility that the construction project was not carried out in accordance with the plan and led to one of the parties suffer a financial loss. Therefore needed third party as a guarantor who can be trusted by both parties, in which both sides have legal certainty that each parties will meet their contractual obligations. Consider the condition of being there, Bank Indonesia as the central bank issued regulations about Bank Guarantee services in Indonesia to increase confidence among both sides and as well as to minimize the risk of harm. The author finds cases regarding the disbursements practice of Bank Guarantee, among others: Putusan MA No. 672 K/PDT/2004 and Putusan MA No. 2280 K/PDT/2010. On that 2 (two) verdict, the construction services provider were failed to carry out the work within term and condition that stated in the contract and based on that the user decide to cancel the contract unilaterally, and then claim to disbursement the Bank Guarantee that provided by the service provider due to the existence of fault, however that 2 (two) verdict had difference regard to the rights over the disbursements of Bank Guarantee. These inconsistency encouraging writer to do research about disbursements practice of Bank Guarantee in Indonesia. This thesis using statute approach, conceptual approach, and case approach to analyse the justification of disbursements of Bank Guarantee.