257 LEGAL BASIS OF USING DEBT COLLECTOR SERVICES BY SHARIA BANKS AND FINANCING INSTITUTIONS TO COLLECT DEFAULTING FIDUCIARY
GUARANTEE IN INDONESIA Ari Tri Wibowo*, Tri Lisiani Prihatinah
Faculty of Law, Jenderal Sudirman University, Purwokerto (UNSOED)
* (Corresponding author) Email: [email protected] ABSTRACT
This study examines the legal basis and implementation of the use of debt collector services by Islamic banking or Islamic financing institutions. This billing is done to take the collateral if the fiduciary giver defaults. The type of research used is normative juridical research. Legal materials were collected by means of literature study and document study. The results of the research show that it is permissible to use debt collection services by Islamic Banking and Sharia Financing Institutions as long as they comply with the regulations regulated by Indonesia Bank, the Financial Services Authority, and the Constitutional Court Decision regarding fiduciary guarantees.
Keywords: Banking, Sharia Financing Institution, Fiduciary, Debt Collector
INTRODUCTION
The development of financial institutions in Indonesia is an attractive alternative for entrepreneurs and individuals. This is because it can overcome financial problems, especially financing the purchase of capital goods within a certain period of time, because the purchase payment is paid in installments over a certain period of time. Finance companies (finance) and banks (commercial banks and credit) that provide financing for consumers (consumer finance), in the form of leasing, factoring. In general, using agreement procedures that include the existence of fiduciary guarantees for objects of fiduciary security. Fiduciary guarantees can also impose receivables. At first, fiduciary guarantees were not regulated in law, that based on jurisprudence, and this fiduciary guarantee was formerly known as Fiduciare Eigendom Overdracht (Sudewi, Sri, 1977:74). The problem of guaranteeing a debt has a very important meaning for creditors, because an agreement between creditors and debtors, creditors have an interest that the debtor must fulfill obligations (Tiong, Oey Hoey, 1985:15). So that the law that regulates fiduciary guarantees emerged in Indonesia. In contrast to pawning, in a fiduciary guarantee, the object being fiduciary is in the power of the debtor or fiduciary giver.
Fiduciary guarantee is a conventional product that is applied to provide protection especially for creditors. When a debtor defaults, the creditor can request compensation from the debtor through the execution of the fiduciary guarantee. With fiduciary registration, the execution of collateral goods can be carried out immediately without waiting for a court decision. This kind of condition makes it easy for financial institutions to withdraw compensation from financing provided to customers. (Maksum, Muhammad, 2015:55). Indonesia has two banking systems, namely the conventional banking system and the Islamic banking system. In Law Number 7 of 1992 concerning Banking, which has been amended by Act Number 10 of 1998, it is written that
258 commercial banks carry out business activities conventionally and or based on sharia principles (Islamic banks). Likewise, financial institutions in Indonesia run two systems, namely conventional and sharia. The term Sharia comes from Arabic which means "the way to the source of life", which in Islamic law is defined as laws or regulations that Allah SWT has determined for His servants as contained in the Qur'an and explained by the Prophet Muhammad SAW in the form of sunnah (hadith). (Ningsih, Widya, 2007)
Article 8 of Law No. 23 of 1999 concerning Bank Indonesia states that in order to achieve and maintain stability in the value of the rupiah, Indonesian Bank has three main tasks pillars, one of which is to regulate and supervise banks, including commercial banks and Islamic banks. From this main task, it is increasingly clear that Indonesia Bank has been given a mandate or obligation by the Government to develop Islamic banks by compiling regulations and preparing infrastructure in accordance with the characteristics of Islamic banks. Islamic banks in Indonesia are also under the supervision of Indonesia Bank, so they must comply with the rules made by Indonesia Bank. The development of the Islamic economy in Indonesia is quite rapid, which is indicated by the increasing number of Islamic banks and non-Islamic financial institutions. In economic life, we are not only familiar with Islamic banking which has become the concern of many people. Islamic economics is not just discussing Islamic banking, but discussing all things related to human economic life. With the development of Islamic banking, other Islamic economic practices have also developed, such as leasing, insurance, capital markets, pension funds, pawnshops, zakat institutions, cooperatives and so on. This progress is a positive signal to support all community needs which are organized Islamically, considering that previously there were no services and processes for fulfilling community needs that were in accordance with Islamic law (Muhaimin, 2012:107-122)
The development of the Islamic finance industry has grown rapidly. This is evidenced by the existence of non-bank financing institutions that have applied the concept of profit sharing to their customers since before 1992. (Sutedi, Adrian, 2009:v). In practice, finance companies provide movable goods requested by the debtor, then on behalf of the debtor as the recipient of the credit or loan. Consequently, the debtor submits to the creditor (credit provider) on a fiduciary basis, meaning that the debtor remains as the owner of the goods and becomes a fiduciary giver to creditors who are in a position as fiduciary recipients, then both parties agree to use fiduciary guarantees for the debtor's property and a Notary deed is made and then registered to the Ministry of Law and Human Rights. Creditors as fiduciary recipients will receive a fiduciary certificate, and a copy will be given to the debitor. By obtaining a fiduciary guarantee certificate, the creditor or fiduciary recipient immediately has the right of direct execution (parate execution), as happens in lending and borrowing in the banking. The legal force of the certificate is the same as a court decision that already has permanent legal force.
One of the biggest problems for debitors if they are late in paying installments is the withdrawal of objects that are fiduciary by the leasing party (creditor) or the collection of credit card debt by the bank that issued the credit card. Withdrawal of collateral is done through an intermediary, namely debt collector services. Debt collectors can forcibly take vehicles that have bad credit that have matured for a long time. This forced withdrawal also results in losses for the debitor, because apart from losing the vehicle, the previously paid installments cannot be requested back. A fiduciary agreement is basically a debt agreement between a creditor and a debtor involving a guarantee company. With respect to the object of the guarantee, its position is still in the control of the owner of the guarantee, namely the creditor and to guarantee legal certainty for the creditor.
By registering a fiduciary guarantee, the creditor will get a fiduciary guarantee certificate that is
259 devoted "for the sake of justice based on the Almighty God. Thus, it means having the power of direct or prioritized execution rights and can apply like a court decision that has permanent legal force if the debitor defaults on the fiduciary agreement that has been made with the debitor (parate execution).
FORMULATION OF THE PROBLEM
Based on the introduction above, the researchers formulated the problems to this studied, namely as follows:
1. What is the legal basis for the use of debt collectors by Islamic banks and Islamic financing institutions in Indonesia?
2. How is the implementation of the use of debt collector services by Islamic banking in Indonesia?
RESEARCH METHODOLOGY
To be able to answer the problems above, this research uses the normative juridical method, which refers to the provisions of the laws and regulations in Indonesia. The type of data used in this research is secondary data. Based on these data sources, activities are carried out in carrying out this research, namely conducting library research (Library Research). After the data is obtained, the next activity is to analyze it descriptively, it is said to be descriptive, namely being able to provide a detailed, systematic and comprehensive picture of all matters relating to the problems discussed.
DISCUSSION
Legal Basis for the use of debt collectors by Islamic banking and Islamic financing institutions in Indonesia.
The concept of guarantee in Islam has been introduced since the beginning of Islam. The Prophet Muhammad himself practiced guaranteeing debts. Collateral can be in the form of objects or people. Guarantees in the form of objects are often called rahn, and guarantees in the form of people are called kafalah. Al-Subki from Syafi'iyah defines rahn as making an asset as collateral for a financing or loan, so that the financing or loan can be repaid with the value of the financing asset or guarantee when the recipient of the fee or the borrower is unable to repay the bond (Maksum, Muhammad, 2015: 5). The concept of Islamic law does not actually recognize the term guarantee of property rights. However, what happens in the practice of Islamic banking, financing carried out by Islamic banks is also attached with a material guarantee under civil law. In formal juridical terms, financing activities based on sharia do not conflict with the law. Problems in the context of sharia appear to look at sharia financing which is associated with the concept of fiduciary guarantees that are not known in the content of sharia economics. (H.S, Salim,2008:67)
One of the legal products issued by the National Sharia Council (DSN) of the Indonesian Ulema Council (MUI) in Fatwa Number 68/DSN-MUI/III/2008 concerning Rahn Tasjily has outlined the concept of collateral with the transfer of ownership rights to goods as collateral as a form of institutional service. sharia finance to comply with Sharia principles. However, the legal product does not regulate in detail the imposition of guarantees such as fiduciary guarantees, so that in practice it cannot be a guideline for Islamic banking and Islamic financial institutions in Indonesia.
(Sutedi, Adrian, 2011:44). In the practice of Islamic banks and Islamic financial institutions, the binding provisions on guarantees or collateral still use the same provisions as those practiced in conventional banks and financial institutions. This is because there are no special provisions or
260 DSN fatwas that regulate this. If referring to the meaning of Law Number 21 of 2008 concerning Islamic Banking as lex specialis derogat legi generalis. Thus anything that has not been regulated in the Sharia banking law have to use the legal basis of the legislation applicable to conventional banks.
The word fiduciary comes from the Latin word fiducia which according to the Legal Dictionary means trust. (Subekti, 1979:46). The term fiduciary in Indonesian is the surrender of property rights in trust, while in Dutch terminology it is also called the term fiduciary eigendom overdracht.
Fiduciary comes from the word fieds which means trust. Trust means that the guarantor believes that the surrender of his property is not intended to actually make the creditor the owner of the object and if the principal fiduciary agreement is paid off, the collateral object will return to the property of the guarantor. (Tunisa, Nazia, 2015:362). In a fiduciary agreement the object that is the object of the fiduciary guarantee is still in the control of the owner of the object (the debtor) and is not controlled by the creditor, so in this case it is the surrender of ownership of the object without handing over the physical object. (Sriono,2019:150). In Indonesia, the enactment of Law Number 42 of 1999 concerning Fiduciary Guarantees on September 30, 1999, is a strong legal basis for binding movable objects, both tangible and intangible and immovable objects that cannot be encumbered with Mortgage Rights as collateral for the repayment of certain debts. The goal is to be able to meet the needs of the rapidly growing and increasingly complex business world.
(Paparang, Fatma, 2014).
In Article 1 Paragraph 2 of Law Number 42 of 1999 concerning Fiduciary Guarantees (hereinafter referred to as the Fiduciary Guarantee Act) it is stated that Fiduciary Guarantees are security rights over movable objects, both tangible and intangible and immovable objects, especially buildings that cannot be moved. encumbered with mortgage rights as referred to in Law Number 4 of 1996 concerning Mortgage which remains in the control of the Fiduciary Giver, as collateral for the repayment of certain money, which gives priority to the fiduciary recipient over other creditors.
Based on the article, objects of fiduciary security can be divided into 2 types, namely: movable objects, both tangible and intangible, and immovable objects, especially buildings that are not encumbered with mortgage rights. The meaning of buildings that are not encumbered by mortgage rights here is in relation to flats, as regulated in Law Number 16 of 1985 concerning Flats. The subject of the fiduciary guarantee is the fiduciary giver and recipient. Fiduciary givers are individuals or corporations who own objects that are the object of fiduciary guarantees, while fiduciary recipients are individuals or corporations that have receivables whose payments are guaranteed by fiduciary guarantees. (H.S, Salim,2008:64).
Islamic banks are intermediary institutions and financial service providers that work based on Islamic ethics and value systems, especially those that are free from interest (riba), free from non- productive speculative activities such as gambling (maysir), free from things that are not clear and doubtful ( gharar), has the principle of justice, and only finances halal business activities. Basic Principles of Islamic Banking In its operations, Islamic banks follow Islamic rules and norms, as mentioned in the above definition, namely: (Ascarya et al, 2005:1-2): 1. Free from interest (usury);
2. Free from non-productive speculative activities such as gambling (maysir); 3. Free from things that are not clear and doubtful (gharar); 4. Free from things that are damaged or invalid (bathil);
and 5. Only finance halal business activities.
Basically, the provision of credit by banks to borrowing customers as debitors is always based on two basic principles, namely the principle of trust and the principle of prudence. One of the implementations of the two principles above is by applying the know your customer principle. The
261 principle of knowing customers is used to identify customers, monitor customer transaction activities, including reporting suspicious transactions. Meanwhile, financing is used to define funding made by financial institutions such as banks to customers. The broad definition of financing is funding issued to support planned investments, whether carried out alone or carried out by others. (Nur, Rizal, 2015:85). According to Law number 21 of 2008 concerning Islamic banking, Article 1 point 25 explains that, "Financing is the provision of funds or equivalent claims in the form of": a. profit sharing transactions in the form of mudharabah and musyarakah; b. lease transaction in the form of ijarah or lease purchase in the form of ijarah vomiting bittamlik; c. sale and purchase transactions in the form of murabahah, salam, and istishna' receivables; d. lending and borrowing transactions in the form of qardh receivables; and e. service lease transactions in the form of ijarah for multi-service transactions.
Financing Institution is a business entity that carries out financing activities in the form of providing funds or capital goods by not withdrawing funds directly from the public. The line of business of financial institutions includes several alternative financing activities, such as leasing, factoring, credit cards, and consumer finance. A financing institution whose business activities emphasize more on the financing function, namely in the form of providing funds or capital goods by not withdrawing funds directly from the public. Financial institutions in Indonesia began in 1988, namely with the issuance of Presidential Decree Number 61 of 1988 concerning Financing Institutions, and the Decree of the Minister of Finance Number 1251/KMK.013/1988 concerning Provisions and Procedures for Implementation of Financing Institutions. These two decisions are the starting point of the historical development of consumer financing arrangements as a financing business institution in Indonesia. Even though the finance company has provided convenience to consumers, its implementation must continue to apply procedures in the form of a survey of prospective customers, which is carried out at the customer's residence. The survey to the customer's place of business is intended to find out the truth of the customer's domicile, occupation and income as well as to estimate whether or not the amount of proposed financing is related to the prospective customer's business or occupation. The survey to the customer's residence is also intended to ascertain whether the customer in question really lives in the house and whether the house is owned or rented. This is done in order to ensure that consumers are able to pay instalments to finance companies. (Sunaryo, 2009: 98)
Article 5 paragraph (1) of the Fiduciary Guarantee Law stipulates that "to guarantee legal certainty and protection for creditors and debitors, the binding of fiduciary guarantees must be stated in an authentic deed." Furthermore, Article 11 of the Fiduciary Guarantee Law stipulates that objects that are burdened with fiduciary guarantees must be registered at the fiduciary registration office.
The registration of fiduciary guarantees aims to guarantee legal certainty, one of which is the certainty of execution of fiduciary objects if the debtor defaults. The executive title "For Justice Based on God Almighty" is contained in the head of the fiduciary guarantee certificate. With this title, creditors can carry out direct executions without a court process. The term "withdrawal of fiduciary security objects" is also found in Article 30 of the Fiduciary Guarantee Law that "debitors are obliged to submit objects of fiduciary security in the context of carrying out executions". In the context of the withdrawal of motorized vehicles based on a fiduciary certificate, the financing institution is deemed to have complied with and complied with the terms and conditions applicable in the Fiduciary Guarantee Act. Withdrawal of fiduciary collateral objects by creditors is usually done using the services of a debt collector.
The use of debt collector services is regulated by Bank Indonesia, the rules made by Bank Indonesia are Circular Letter of Bank Indonesia Number 7/60/DASP Year 2005 Chapter IV
262 numbers 1 and 2 which states that if in carrying out APMK activities the Issuer and/or Financial Acquirer performs cooperation with other parties outside the Issuer and/or Financial Acquirer, such as cooperation in marketing, billing, and/or system operations, the Issuer and/or Financial Acquirer must ensure that the procedures, mechanisms, procedures, and quality of the implementation of activities by the other party is in accordance with the procedures, mechanisms, procedures, and quality if the activity is carried out by the Issuer or the Financial Acquirer itself.
So here all banks under Bank Indonesia must obey these rules. Regulations regarding the use of debt collector services are also regulated by the Financial Services Authority. Financing companies can cooperate with other parties in terms of collection. This is regulated in Article 48 Paragraph 1 of the Financial Services Authority Regulation No. 35 of 2015 which states that Financing Companies can cooperate with other parties to perform collection functions to debtors.
Cooperation with other parties in this case is usually a cooperation with a debt collector company.
The cooperation must be carried out based on an agreement between the financing company and the company that provides the debt collector services.
Furthermore, Article 48 paragraph 2 of the Financial Services Authority Regulation Number 35 of 2015 states that the financing company is obliged to establish cooperation with other parties as referred to in paragraph (1) in the form of a stamped written agreement. The existence of an agreement is evidence that there is a relationship between the financing company and the company where the debt collector is, there is an agreement between them in terms of using these services.
The finance company in this case is the consumer who uses the collection service. The agreement used between the finance company and the debt collector is an agreement regulated in the Civil Code (KUHPerdata). Agreement according to the formulation of Article 1313 of the Civil Code, the definition is an act by which one or more people bind themselves to one or more people.
(Subekti, 2003:338) According to Subekti, the definition of an agreement is: a legal relationship between two or more people, based on which one party has the right to demand something from the other party, and the other party is obliged to fulfill that demand. (Subekti, 1984:1). While the conditions for the validity of an agreement are regulated in Article 1320 of the Civil Code. For the validity of an agreement, four conditions are needed, namely: Agree on those who bind themselves, Able to make an agreement, Regarding a certain matter, A lawful cause. The first two conditions are called subjective conditions because they relate to the people or subjects who enter into the agreement, while the last two conditions are called objective conditions because they relate to the agreement itself or the object of the legal action being carried out. (Subekti, 1982:17)
Implementation of the use of debt collector services by Islamic banking in Indonesia
The use of debt collector services by finance companies certainly cannot be blamed because it is regulated in a clear regulation, there are several criteria that must be met for debt collector service providers that can legally be used by finance companies, including in the form of a legal entity, having permission from authorized agency and has human resources who have obtained certification in the field of billing from the Professional Certification Institute in the field of financing. Finance companies must look at this before collaborating with debt collector companies. If the debt collector in carrying out their duties cannot show their professional certification, they will be given sanctions. The term debt collector comes from English, which if translated into Indonesian, namely debt means debt, collector means collector, examiner, collector, collector. their services. debt collectors are third parties who connect creditors and debtors in terms of credit collection. (Kasmir, 2002:92)
Accountability if something happens in the use of debt collector services to the debitor, it has been written in the regulations that the financing company or creditor must be responsible for this.
263 Article 48 paragraph 4 of the Financial Services Authority Regulation Number 35 of 2015 states that the Financing Company must be fully responsible for all impacts arising from cooperation with the debt collector. The Constitutional Court's Decision Number 18/PUU-XVII/2019 interprets that for fiduciary guarantees where there is no agreement on breach of contract (default) and the debtor objected to voluntarily surrendering the object as fiduciary guarantee, then all legal mechanisms and procedures in the execution of the Guarantee Certificate Fiduciary must be carried out and applies the same as the execution of court decisions that have permanent legal force. The execution of the object of fiduciary security after the Constitutional Court Decision Number 18 /PUU-XVII/2019 is: a. There is an element of a default agreement clause in the agreement agreed by the parties; b. There is an element of the debtor's willingness to submit the object of the fiduciary guarantee according to the agreement and if it does not pay off it will be executed by the creditor.
Broadly speaking, scholars formulate it as follows: "Default is an event or condition, where the debtor has not fulfilled his obligations of engagement properly, and the debtor has an element of guilt over it." (J.Satrio,2012:3) which is manifested in several forms, namely: (J.Satrio,1989:203).
In practice, financial institutions and banks will establish a consumer financing transaction with the concept of a contract that does not only regulate the debtor's obligation to pay the debt in full.
However, it also contributes to the burden of certain objects/vehicles that are financed by a financing institution, in which the object based on a mutual agreement is used as collateral which has legal consequences. If the debtor is negligent, the debtor must voluntarily hand over the vehicle to the creditor for sale and use for the settlement of receivables. In other words, debt collectors who make vehicle withdrawals basically refer to the wishes or orders of the debtor or consumers themselves that have been mutually agreed upon in the financing agreement. In the agreement, the debtor authorizes the creditor to take the collateral unit and sell it in order to meet all of the debtor's debts. The power of attorney is one of the instruments agreed upon and becomes an inseparable part of the main agreement. The contents of this default clause should be stated because of an agreement from both parties, because if it is carried out by only one party, it can be said to be a unilateral agreement whose contents are made by one of the parties, the debtor is the disadvantaged party in this case, because the debtor need fresh disbursement of funds will definitely comply with the wishes of creditors
On the other hand, problems can occur if the default clause is not explicitly specified, allowing the debitor to avoid paying obligations from paying debts, there is no willingness of the debtor to submit the object of fiduciary security, this can be a valid reason by the debtor not to get the object of execution of his guarantee by the debtor. creditor. This results in the need for an application for execution to the court. In an agreement, both parties are binding themselves to carry out something that has been agreed upon (achievement). Achievement is an obligation that must be fulfilled or carried out by the debtor in each engagement originating from the agreement or from the law. (Sinungan, Muchdorsah, 2008:78) Based on Article 1234 of the Civil Code, achievement is giving something, doing something, and not doing something. There is a time when the performance cannot be carried out by the debtor, due to the debtor's error due to intentional or negligence, is called a default and forced circumstances beyond the ability of the debtor or overmacht. (Surya, Bhatara, 2017:8) However, this does not rule out the possibility that one of the parties does not carry out the agreement.
The high cost of litigation with high costs in court is a public complaint. Complaints about this almost occur in all types of civil cases. The perception of the public regarding the high cost of proceeding in court is also seen by various finance companies, so they take shortcuts using debt
264 collector services. Billing using a debt collector is actually not something new for the community because it has been implemented for years. Billing using the services of a collector is caused because there will be no commensurate civil case costs that must be incurred by the bank if taking the court route with the total arrears of a customer's debt. In addition to the high cost, the difficulty factor in carrying out the execution of court decisions is a problem that is also faced in civil procedural law. (D Agustine, 2017)
The decision of the Constitutional Court 18/PUU-XVII/2019 regarding fiduciary guarantees, inevitably makes the creditor must firmly determine the debitor's willingness to submit the collateral object in the default clause in the credit agreement agreed upon by the parties, if this is not done it will result in the creditor cannot execute the object of fiduciary security if the debtor is found to be negligent in carrying out obligations or is in default. The creditor may only execute the object of the fiduciary guarantee if there is a default and the default clause has been agreed upon by both parties regarding the debtor's willingness to be executed. The decision of the Constitutional Court Number 18/PUU-XVII/2019, provides clarity regarding the phrase breach of contract in the Elucidation of Article 15 paragraph 2 of the Fiduciary Guarantee Law. Fiduciary execution is carried out if there is a breach of contract that is recognized in the execution of the fiduciary guarantee, it is only recognized if there is an agreement on a default clause that is recognized for the parties. The acknowledgment of breach of contract that is carried out unilaterally results in the execution of a fiduciary object being legally or legally impossible.
Meanwhile, the phrase "and the debtor objected to voluntarily surrendering the object that is the fiduciary guarantee" is only a complementary element in the execution of the object of the fiduciary guarantee. The main element of the execution of fiduciary guarantees is the existence of a default clause in the agreement that has been agreed upon by the parties.
Based on the decision of the Constitutional Court regarding fiduciary guarantees, it means that the creditor company can still withdraw the object of the fiduciary guarantee from the debtor without going through an application to the District Court (PN). The company can still carry out the execution of the fiduciary guarantee without a court decision, as long as there is an agreement that there has been a default between the creditor and the debtor. The agreement is related to the fiduciary rights giver admitting that he has defaulted and will voluntarily provide the object of collateral in the execution of the object of the fiduciary guarantee. The verdict says, regarding the default between the debtor and creditor, there must be an agreement to determine the condition of the default. For example, how many loan agreements, the agreed interest to be paid, the term and deadline for payment, due to default due to non-payment of installments, and fines. The creditor company executes if there are conditions, including the debtor defaults, the debtor has received a previous warning.
Several problems related to the registration of fiduciary guarantees, among others, regarding the way debt collectors withdraw motorized vehicle units against customers who are negligent but do not comply with existing regulations, and this can be categorized as an act that violates the law.
The Financial Services Authority stated that a third party known as a debt collector is required to bring a number of documents. This is in order to strengthen the legality aspect of the law to prevent disputes from occurring. Documents brought are identity cards, professional certificates in the field of billing from the Professional Certification Institute in the field of financing registered with the OJK, assignment letters from finance companies, proof of debtor default documents, and copies of fiduciary guarantee certificates. OJK also emphasized that multi-finance companies that use debt collector services in collection must ensure that they have previously sent a warning letter to customers, in accordance with applicable regulations. In addition, all debt collectors who are
265 partners with the company already have professional certificates, follow the laws and regulations in the process of billing to customers, and conduct periodic evaluations of the performance of debt collectors. Keep in mind, debt collectors are not allowed to use threats, commit acts of violence that are humiliating, and exert pressure on physical or verbal violence. (Rahardyan, Aziz, 2021)
According to criminal law, the use of debt collectors can also be subject to several criminal articles if there is physical or verbal violence. Based on the provisions of the Criminal Code (KUHP), acts of violence committed by debt collectors can be prosecuted. In the event that the debt collector uses harsh words and is carried out in public, then he can be sentenced to an insulting article, namely Article 310 of the Criminal Code,n"Whoever damages someone's honor or reputation by accusing him of committing an act with a clear intention will be exposed to that accusation, shall be punished for blasphemy, with a maximum imprisonment of nine months or a maximum fine of Rp. 4500." In addition, Article 335 paragraph (1) of the Criminal Code jo. Constitutional Court Decision Number 1/PUU-XI/2013: "Threatened with a maximum imprisonment of one year or a maximum fine of Rp. 4,500 anyone who unlawfully forces another person to do, not to do or to allow something, by using violence, or by using threats of violence, either against the person himself or others. ." Regarding the requirements for professional certification of debt collectors, it is regulated in the Financial Services Authority Regulation (POJK) number 35 of 2018 concerning the operation of finance company businesses. Article 48 paragraph 1 Number 35 of 2018 states that finance companies can cooperate with other parties to perform the billing function to debtors. The provisions related to the collection cooperation are explained in more detail in Article 48 paragraph 3 letter c which states that the other party has human resources who have obtained professional certification in the field of financing. Professional certification for debt collectors or debt collectors is usually issued by the Association of Indonesian Financing Companies (APPI). Debt collectors or debt collectors must show professional certification when performing billing tasks to debtors. If in carrying out their duties the debt collector does not have a professional certification, they will be given sanctions.
CONCLUSION
Sharia Banking and Sharia Financing Institutions can use debt collector services but of course they must comply with existing regulations, namely based on the Civil Code, Bank Indonesia Circular Letter Number 7/60/DASP Year 2005, Financial Services Authority Regulation Number 35 of 2015. Financing companies can cooperate with other parties to perform the function of billing to debtors, such cooperation must be carried out with a written and stamped cooperation agreement.
All impacts arising from the implementation of the agreement between the financing company and the debt collection service will be the responsibility of the financing company or creditor.
The execution of collateral objects by debt collectors must look at the Constitutional Court Decision Number 18/PUU-XVII/2019 which states that the execution of fiduciary collateral objects must be based on the default clause in the credit agreement and in the execution of the execution there must also be no objection from the debtor to submit the collateral object. or objects that become fiduciary guarantees voluntarily. All legal mechanisms and procedures in carrying out executions by debt collectors must be fulfilled with a fiduciary guarantee certificate that must be carried out in accordance with laws and regulations, debt collectors in carrying out their duties must bring documents in the form of identity cards, professional certificates in the field of billing from the Professional Certification Institute in the field of financing registered in OJK, assignment letter from finance company, proof of debtor's document in default, in addition
266 to that in carrying out their duties debt collectors are not allowed to use threats, commit acts of violence that are humiliating, as well as exert pressure on physical and verbal violence.
SUGGESTIONS
The use of services by Islamic banking and Islamic financial institutions is permitted but must comply with existing regulations both in licensing the use of debt collectors, however in the future it is better to have more detailed arrangements regarding the use of debt collector services in Sharia and how the procedures for cooperation between Islamic banking institutions are or Islamic financial institutions with third parties which are debt collection service companies, and clearer rules are also needed regarding debt collection procedures that do not use violence or other behaviors that do not violate sharia law.
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