IN INDONESIA AND THE uNITED STATES
B. Discussion
Fiduciary institution is already very old, and was known and used in Roman law society. In Roman law, the guarantee institution is known as fiduciary cum creditore contractâ (that is the promise of the trust created with creditors). The contents of the pledge made by the debtor to the creditor is that the debtor will transfer the ownership of an object to the creditor as security for his debt with the agreement that the debtor will continue to dominate the physical object is, and that the creditor will transfer back the ownership to the debtor if the debt has been paid in full.6
Giver of fiduciary trust that creditors would restore the recipient of fiduciary property rights that have been delivered to him, after the debtor repay his debt. Creditors fiduciary receiver also believe that fiduciary giver debtors will not abuse the collateral that is in power and want to maintain the item as the father of a good home.
Fiduciary guarantee in the form of goods moving to large loans to be covered by notarial deed.
For a fiduciary guarantee in the form of a moving object, the notary must explain the authority to supervise goods and legal actions that can be taken against the debtor. Another aspect of the notarial deed to note is legal certainty to the fiduciary on the ground with the right to use, must be stated by the Land Deed Officer (Land Deed Officer).7
In practice, the object of fiduciary initially focused on moving objects as collateral, such as for motor vehicles, home furnishings, inventory, machinery factories, ships measuring less than 20 m3, and so on, but then the object fiduciary expanded to include also immovable, such as to buildings, such as houses and even rights over land can do fiduciary (usually ground with the status of use rights), which are not eligible for collateralized by mortgages. Registration moving objects as collateral in the form of motor vehicles, machinery, plant equipment, ships, small boats with a minimum weight of 20 m3 should be registered in a special signup.
Two important things related to insurance law, the registration of the property rights attached to the goods as collateral and the rights to sell, if the debtor is unable to pay the loan. Registration is very important that there is certainty over property rights attached to the goods as collateral.
While the rights to sell the property rights are very important to reassure the rights of creditors in the event the debtor is unable to perform its obligations.
As in Indonesia, in many countries, guarantee of movable and immovable objects are usually registered to relevant authorities and designated by a legislation. Likewise, the United States, in order to ensure legal certainty of rights to movable and immovable must be registered by the debtor to the creditor/banking institutions in order to ensure legal certainty.
The following can be described on material security rights fiduciary institutions in Indonesia as stipulated in Law No. 42 of 1992 with the fiduciary institution in the United States as set forth in Article 9 Uniform Commercial Code (UCC).
6 H.R. Daeng Naja, Hukum Kredit dan Bank Garansi the Bankers Hand Book, Citra Aditya Bakti, Bandung, 2005, p. 276.
7 Ibid., p. 36.
1. Indonesia a. Registration;
Given the importance of the registration function for a debt security, including fiduciary, the fiduciary laws, namely Law No. 42 of 1999 has require each fiduciary for registration to the competent authority.
b. The principle of publicity of fiduciary;
Regarding the principle of publicity, the provisions of Article 18 shows that of the fiduciary apply the principle of publicity. The principle of publicity should be given by the nature of droit de suite of a security interest. A third party acting in good faith should be protected interests, and it is impossible for third parties to be burdened with the provisions of Article 20 if the third party is not possible to know that an object has been encumbered by a fiduciary guarantee. Only when the registration of fiduciary in Fiduciary Registration Office should be assessed by the public, then the provisions of Article 20 can be applied.
c. Registration of fiduciary obligations;
Fiduciary registration is done in Fiduciary Registration Office at the seat of the provider of fiduciary. Registration is done on objects fiduciary fiduciary collateral object residing in the country, objects of fiduciary security object that is outside, and to changes in the content of fiduciary certificates. This change does not need to be done by notarial deed but need to be notified to the parties.
d. Fiduciary registration office;
Place of registration of fiduciary guarantee provided for in Article 12 paragraph (1) through (4). The provision is clear that a fiduciary registration is in Fiduciary Registration Office under the auspices of the Department of Justice.
e. Register fiduciary;
Fiduciary guarantee recorded in Fiduciary Registration Office. For this purpose Fiduciary Registration Office in the Register of Fiduciary. Registration in the Register of Fiduciary is dated with the same date as the date of receipt of the application for registration.
f. Fiduciary registration statement and statement of changes;
Fiduciary registration application submitted to the Registry Office fiduciary by attaching a script called “Fiduciary Registration Statement”. Registration office only serves as an agency making “checks” administration.
2. Amerika Serikat
Laws regarding transactions with collateral in the United States set in Article 9 Uniform Commercial Code. Article 9 UCC applies to all transactions that may lead to debt guarantees to private property or buildings including goods, documents, financial instruments, immovable general, securities or accounts and also minerals (minerals). This Article shall also apply to the sale, which in this case is the sale of accounts (accounts) and securities (chattel paper).
Article 9 UCC governs the material guarantees both mobile and fixed. Thus, setting the material guarantees in the United States did not distinguish which one is movable and immovable.
a. Imposition debt guarantee (attachment);
Basic requirement for the imposition of bail is known as attachment is meant by
“enforceable against the debtor” (enforceable againts the debtor). Debt security that has been through the process of attachment (attached) shall also apply to third parties.
In transactions where the debtor control of the collateral, the secured party must register the statement of debt (financing statement) on the public record for the priority of the other party. In this condition, the guaranteed party carefully enough to register a financing statement is equipped with the signature of the debtor. Another requirement that must be met in order to obtain priority in the repayment of secured debt is the implementation of perfection. In the registration process, guaranteed party must give notice to the public in a filing to the financing statement.
In connection with the debt guarantee transactions that occur between states, governed by Article 9-103 which states that the registration of the collateral depends on the state of nature (nature) of the collateral.
b. Registration of debt security (perfection);
Perfection can be interpreted as an improvement of binding collateral through the registration process. The purpose of this process is that the parties are guaranteed the right to precedence of any third party. Most warranties can be registered only when it has been archived in a statement the debt (financial statement).
Agreement must be made in writing and signed by the debtor. If a guarantee is the ownership of the guaranteed party, the registration process without filing a document debt statement. Assurance that such instruments can be registered only with possession, except for the possibility that registration is done on a temporary basis as set out in Section 9-304 (4) and (5).
c. Registration by way of archiving;
Article 9 set also about filing system known as the notice by filing. The theory used in this filing system is to use the theory of Credit alerts Searcher. Related to the interests of the guarantee can only be registered by means of a debt statement filing (filing a financing statement).
Financial Statements period of validity of a guarantee is 5 years. After the time period, further collateral in the form of statement archiving Continuation (continuation statement), which was signed by the guaranteed party. Continuation of this statement should be registered for the Financial Statement is effective, but not earlier than 6 months prior period financial statement ended. Continuation statement would not maintain the effectiveness of the Financial Statements. If the parties are guaranteed not
to get a perfect right time due to the passage of time the Financial Statements, based on Article 9-312 (5) (a), he gets a priority to guarantee archive entered on archiving.
d. Special registration rules for certain types of collateral;
When linked to a moving object, then here there are provisions on the Certificate of title. Exceptions were mainly devoted to the provision of certicate of Title of the motor vehicle. Vehicle ownership is represented by a Certificate of Title. This letter was published by the state shortly after a new car from a dealer sold. Conflicts can occur between buyers with creditors. It has been stated in the Certificate of Title.
e. Perfection in inter-state transactions.
The provisions for the registration of transactions between state governed by Article 9-103. Provisions to determine where the registration of the collateral depends on the state of nature (nature) of the collateral. The principle contained in Article 9-103 in relation to a transaction involving interstate moving goods (mobile goods) as defined in Section 9-103 (3) (a), including goods moving and type normally used in more than one jurisdiction. If the goods are equipment or inventory loans (leased) or held for lease debtors and not equipped with the right certificates. Definition exclude each vehicle used for consumptive purposes and exclude each vehicle in which the right certificate has been issued
For vehicles equipped with a certificate of rights, each state has laws regarding the rights certificates, which mean registration of collateral on a vehicle only to record the guarantee certificate.
Differences in the loading system and registration of collateral security rights in Indonesia and the United States, caused by the influence of the legal system, as it is known that in Indonesia is dominated by civil law system, whereas in the United States of America using the common law system.