Reconstruction of the Legal Regulations on the Execution of Fiduciary Guarantees in Realized Legal Certainty and Justice After the Constitutional Court Decision

Abstract

Fiduciary guarantee execution is a crucial instrument in the national financing system because it facilitates creditors' ability to obtain repayment of receivables through a parate execution mechanism. However, the enactment of Constitutional Court Decisions No. 18/PUU-XVII/2019 and No. 2/PUU-XIX/2021 has changed the paradigm of fiduciary guarantee execution in Indonesia. These decisions stipulated a default agreement and voluntary surrender of the collateral as prerequisites for execution without going through the courts. Consequently, there has been disharmony in norms, legal uncertainty, and a degradation of the executorial title of fiduciary guarantee certificates. This study aims to analyze the problematic regulation of fiduciary security execution following the Constitutional Court decision and to formulate an ideal legal reconstruction to achieve a balance of legal protection between creditors and debtors. The research method used is empirical juridical legal research, namely research by examining legal principles, legal regulations, concepts and theories related to the execution of fiduciary guarantees before and after the Constitutional Court's decision and its implementation in the practice of executing fiduciary guarantees. The results indicate that the current regulation of fiduciary security execution does not provide legal certainty due to unclear norms regarding default, execution mechanisms, and the limits of creditor authority. Therefore, legal reconstruction is needed through harmonization of the Fiduciary Guarantee Law, the establishment of a simplified court-based execution mechanism, strengthening pre-execution mediation, and establishing standards for fair execution.