Tinjauan Atas Pelaksanaan Penghapusan Jaminan Fidusia (Studi Pada Lembaga Pendaftaran Fidusia Kementerian Hukum Dan Hak Asasi Manusia Propinsi Aceh)

Abstract

In Law No. 42/1999 on fiduciary, it is stated that fiduciary guarantee must be made based on the notarial document. The fiduciary guarantee must be registered to guarantee the legal certainly that the creditor will get a preferential position compared to the other creditors and have an executorial power when the debtor cannot keep his promise. Also a regulation on how to eliminate the fiduciary guarantee for the one which have been registered and have been paid in the fiduciary registration office. But, in the fiduciary registration office of the province of Aceh, the fiduciary which have been registered and paid were never discarded that repayment still occur frequently for the items which are still registered as fiduciary guarantee. Therefore, it is necessary to do a study on why the fiduciary guarantee act must be made by a public notary, why the fiduciary guarantee act must be made by a public notary, why the fiduciary guarantee which have been registered and paid were never discarded, what constraints were faced in the implementation discarding the fiduciary guarantee especially in the fiduciary registration office of the Ministry of Law and Human Rights, the Province Aceh. This was an analytical and descriptive study using the normative and sociological approach. The primary data were obtained through interview and the secondary and tertiary data for this study in the form of regulation of legislation were obtained through library research. The data obtained through were quantitatively analyzed. The result of study showed that the act for fiduciary guarantee must be made by a public notary that it can be registered in the fiduciary registration office to obtain a legal certainly that the creditor can get the preferential power compared to the other creditor and have an executorial power when the debtor cannot keep his promise. It was also found that the fiduciary guarantee were not discarded because the fiduciary receivers, especially the banks did not care about it even though according to law on fiduciary, the bank is a party which must let the debtor know about the payment of his debt. Since it was regarded that there was no more interest on the object guaranteed because the debtor has paid his debt that it was difficult to prove whether or not a fiduciary has been paid and who the first creditor responsible to for the guarantee was unclear because it was very far for them to get to the fiduciary registration office which is located in the capital of the province. The consequence was the repayment for the same items of fiduciary guarantee may probably occur because the fiduciary provider did not care whether or not the guarantee was discarded because to them it was only for administration interest. All of these become the constraints in the implementation of discarding the fiduciary guaranteed especially the one registered in the fiduciary registration office of the Ministry of Law and Human Rights, the province of Aceh. The parties involved are suggested to go the public notary to make the act of fiduciary guarantee and then register it that the creditor can have preferential right and executorial power when the debtor cannot keep his promise. The banks are suggested to apply the stipulation in Article 26 of Law on Fiduciary Guarantee such as making a report and sending the proof that the debtor has paid his debt and enclose the certificate of its fiduciary. The debtor should be periodically active to ask the bank to issue the proof that the debtor has finished his debt that he himself can apply for the discarding of his fiduciary that his property really comes back to him as the owner. The government should be strict on regulating the deadline of discarding the fiduciary guarantee by requiring the fiduciary to make a power of attorney stating that he trust the debtor to discard the fiduciary by himself by putting/paying attention to the deadline of the power attorney. This power of attorney was enclosed when the registration of fiduciary with the written note saying .being responsible to pay for the fiduciary. on the book of ownership of the fiduciary item that any one can know whether or not the owner of the item is being responsible to pay the fiduciary. The government is also suggested to establish the posts for the fiduciary. The government is also suggested to establish the posts for the fiduciary registration in the district and cities in the province of Aceh.