Monday, September 14, 2009

ARTIKEL TENTANG PAILIT (BANKRUPTCY)

This artikel examine about Bankruptcy (Pailit)
Since the monetary crisis hit Indonesia, which is about the year 1997 many large companies experiencing financial difficulties. This resulted in a lot of these companies went bankrupt and was forced out of business. This situation actually is an undesirable situation by all parties, but because of the economic crisis in our country's bad enough that this situation can no longer be avoided.

Bankruptcy is one way used by creditors or by the debtors to resolve "problems" they are, because the nature of the debtor's bankruptcy is to avoid the arbitrariness of the creditors, while the nature of bankruptcy for creditors is to obtain assurance of payment. As a result of bankruptcy for the debtor and the property is property the debtor will be confiscated to be sold, and the debtor no longer be eligible to manage these assets, because of him will be done by the curator. Bankruptcy own meaning according to Law No. 37 of 2004 namely:
"A general confiscation of all property (assets) that the management and settlement made by the curators under the supervision of a judge supervisors as stipulated in the Law."

Bankruptcy occurs when the debtor can no longer pay its debts, as for the full provisions of the bankruptcy requirements set forth in Article 1 of Law No. 4 of 1998, namely:
"Debtors who have two or more bkreditur and do not pay at least one debt which has fallen due and may be charged, is declared bankrupt by a competent court referred to in Article 2, either at his own request or at the request of one or more creditors."

Terms of Juridical for bankruptcy are:

  1. The existence of debt
  2. At least one debt is due and can be charged
  3. The existence of the debtor
  4. The existence of creditors (more than one)
  5. Bankruptcy petition statement
  6. Declaration of bankruptcy by the Commercial Court

As for the parties that can make a request of bankruptcy is:

  1. Debtor
  2. Creditor
  3. Attorney general interest
  4. Bank Indonesia
  5. Capital Market Supervisory Agency

The steps that are in bankruptcy is 9 steps, namely:

  1. Bankruptcy petition, bankruptcy petition requirements have been stipulated in Law no. 4 In 1998, as what has been written above.
  2. Bankruptcy decision power remains, the period of the petition in bankruptcy until the bankruptcy decision power to stay is 90 days.
  3. Meetings verification, is meeting registration debts, in this step is data collection and how much debt is owned by the debtor piutangyang. Verification of the debt is the most important stage in the bankruptcy because the order of consideration will be given the rights of each creditor. Verification meetings led by supervisors and judges attended by: (a) the Registrar (as scribe), (b) Debtor (not represented because the debtor will have to explain that later on there differences of opinion about the bill, (c) The lender or their proxies (if absent to present no nothing, will follow the meeting), (d) Receiver (must be present for an asset manager).
  4. Peace, if peace is received then the bankruptcy process ends, otherwise it will proceed to the next process. The peace process and scheduled always sought. There are several differences between the peace that occurred in the bankruptcy process with the usual peace. Peace in the bankruptcy process include: (a) binding on all creditors unless the creditor separatists, because the lender has guaranteed its own separatist with a separate security body with general bankruptcy assets. (b) bound formality, (c) the ratification of the trial homologation, (d) if the court denies the existence of legal trade cassation, (e) there eksekutorial power, what is stated in peace, its implementation can be done by force. The stages in the peace process, among others: (a) submission of proposals for peace, (b) the announcement of peace proposals, (c) decision-making meeting, (d) the trial homologation, (e) appeals legal efforts, (f) rehabilitation.
  5. Homologation get along, ie request for approval by the Commercial Court, if the peace process received.
  6. Insolvency, ie a state where the debtor was declared unable to pay, or in other words wealth fewer borrowers with debt. About insolvency is to determine the fate of the debtor, whether there will be execution or place the debt restructuring in peace. Time of the insolvency (art. 178 UUK), namely: (a) when the verification is not offered peace, (b) rejected the peace offer, (c) the ratification of peace was rejected by the judge. With the wealth bankruptcy insolvency immediately executed and divided to the creditors.
  7. Clearance / liquidation, the debtor's property ppenjualan bankruptcy, the creditor kepad concurrent distributed, after deducting expenses.
  8. Rehabilitation, which is a vindication of business creditors, but with a note if the peace process acceptable, because if peace is rejected then there is no rehabilitation. Rehabilitsi requirements are: peace has happened, has happened in full payment of debts.
  9. Bankruptcy ends.

In a bankruptcy of a curator's role is very important because he acted as asset manager. Some of the things that must be considered by the curators in the running duties including:

  • The authority of law
  • Economic and business considerations related to the liquidation of assets
  • Involvement of other parties (supervisory judges)
  • Procedures relating to certain legal actions (meetings verification)
  • Habits and proper procedures according to law in a particular action

In exercising its authority, the curator also has a legal responsibility. One of the articles that regulate the legal responsibilities of curators in UUK is in article 72 which states:
"Curator responsible for the mistakes and negligence in carrying out the maintenance tasks and / or settlement that caused loss of property in bankruptcy"

Under Article 72 of the UUK is the curator of personal accountability can be burdened. If the result of fault or negligence has caused harm to the parties interested in the bankrupt property, which is mainly concurrent creditors. So the curator can be sued to pay damages.

The legal consequences of the bankruptcy decision is:

  • Effective property sector
  • Foreclosure common throughout the debtor's assets
  • Debtor individuals, including the husband or wife
  • Debtor taxable gallant (not to leave domicile)
  • Conditions apply criminal remains
  • Decision of bankruptcy by the operation of law
  • Goods are stored valuable curator
  • The cash in the bank
  • There should be a director or commissioner to another company.

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