Kewenangan Kurator dalam Melaksanakan Sita Umum dalam Proses Kepailitan dan Penundaan Kewajiban Pembayaran Utang (PKPU) Terhadap Objek Hak Tanggungan

Abstract

This research is motivated by the conflict of norms between Law No. 37 of 2004 concerning Bankruptcy and PKPU and Law No. 4 of 1996 concerning Mortgage Rights in terms of handling the object of mortgage rights when the debtor is declared bankrupt or is undergoing the PKPU process. On one hand, bankruptcy law stipulates that a general seizure extends to all of the debtor's assets, including security right assets; on the other hand, security rights law grants the secured creditor holding such rights the privilege to independently execute the collateral. This conflict of norms creates serious legal uncertainty regarding the extent of the bankruptcy trustee's authority over security right assets within Indonesian bankruptcy practice. The research findings indicate that security right assets in bankruptcy occupy a position of normative dualism: they are simultaneously part of the bankruptcy estate subject to general seizure, yet they remain encumbered by the preferential execution rights of the secured creditor. The trustee's authority over security right assets is constrained by four limiting pillars: time constraints via a 90-day suspension mechanism; substantive limits on permissible actions; procedural limits requiring the supervisory judge's approval; and the obligation to respect the rights of secured creditors. Violations of these limits on authority entail personal liability for the trustee, whether civilly under Article 72 or criminally under Article 237 of the Bankruptcy Law.