Konsep utang dalam kepailitan (ditinjau dari buku III kitab undang-undang hukum perdata)

Tandjoeng, Noninah (2003) Konsep utang dalam kepailitan (ditinjau dari buku III kitab undang-undang hukum perdata). Masters thesis, Universitas Pelita Harapan.

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Abstract

The existence of debt is one of the important requirements for being declared bankrupt, however in practice it in fact raises various legal interpretations of the meaning of debt. Apart from confiising lay people, it also creates legal uncertainty. Interpretation of the meaning of debt should be tnade not only by referring to the Indonesian Bankruptcy Regulation (hereinafter abbreviated to IBR), considering that the legal bases for bankruptcy are articles 1131 and 1132 of the Indonesian Civil Code (hereinafter abbreviated to ICC) which are closely related to Book III of ICC. Article 1131 of ICC clearly stipulates that "all the debtor's estate is used not only as a security for the debtor's debts, but also to satisfy all the debtor's obligations". The words "all obligations" mean either contractual or statutory obligations under article 1233 of ICC. Therefore, an obligation referred to in article 1131 of ICC is one provided for in Book III of ICC. The teirm "obligation" referred to in Book III of ICC is formulated as property legal relationship between 2 (two) or more parties, based on which one party (creditor) has rights and the other (debtor) has obligations in respect of perfomance. As known, article 1234 of ICC divides performance in obligation into 3 (three) groups, viz to give something, to do something and not to do anything. By form, performance in obligation is said to involve not only one which can be directly valued or quoted in monetary terms, but also one that cannot be directly valued or quoted in monetary terms. Therefore, legal opinions in substance formulating a debt as an obligation directly or indirectly quoted in monetary terms, contractual or statntory, to be complied with by the debtor, which in case offailure to do so shall give rise to right to the creditor to seek satisfaction thereojfrom the debtor's estate, conform to the legal bases for bankruptcy and to BookllloflCC. In addition to the existence of obligation which can be categorized as a debt, a petition in bankruptcy has to meet cumulative requirements, viz substantial and procedural requirements. Substantial requirements constitute the flindamental requirements concerning conditions to be complied with by the debtor to be eligible for bankruptcy under the provision in paragraph (1) article 1 of IBR, while procedural requirements constitute those for simple hearing of petition in bankruptcy under the provision in paragraph (3) article 6 of IBR.

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