Legal Protections for Debtors of Banks Providing Mortgage in Facing Execution Parates

: Legal protection can be interpreted as protection by law or protection by using legal institutions and means. Legal protection is the protection of dignity and worth, as well as the recognition of human rights owned by legal subjects based on legal provisions from arbitrariness. This current study reveals preventive and repressive legal protections for debtors of banks providing mortgage in facing execution parates, according to the Indonesian law (UUHT). The result shows that the preventive legal protections include: Rescheduling, Reconditioning, Restructuring, Combination, Takeover of debtor assets, and Credit conversion. On the other hand, the repressive legal protections include: Execution through public auction, Execution through underhand sales, and Execution via PUPN/BUPLN.


INTRODUCTION
Legal protection can be interpreted as protection by law or protection by using legal institutions and means.Legal protection is everyone's right.Everyone has the right to legal protection.In terminology, legal protection can be interpreted as a regulation or custom that is officially considered binding, which is confirmed by the ruler or government.
Referring to this definition, legal protection can be interpreted as efforts to protect the government or authorities with a number of existing regulations (Badrulzaman, 2001).In short, legal protection is a function of the law itself; providing protection.
Moving on from this simple definition, the Legal Dictionary defines legal protection as coercive regulations that determine human behavior in society (Bahsan, 2012;Indra, 1997).These regulations are made by the official regulatory bodies and any violation of these rules will result in action being taken.
There are many theories of legal protection expressed by experts.According to Hadjon (1987), legal protection is the protection of dignity and worth, as well as the recognition of human rights owned by legal subjects based on legal provisions from arbitrariness.Further, Hadjon (1987) classifies two forms of legal protection for the people based on the means, namely preventive and repressive protection.
The preventive protection means that the people are given the opportunity to give their opinions before the government's decision gets a definitive form, to prevent any potential disputes to occur.Meanwhile, the repressive protection aims to resolve disputes.Legal protection is a guarantee given by the state to all parties to be able to exercise their legal rights and interests in their capacity as legal subjects.

METHOD
The approach used in this current research is the normative juridical method, which is an approach that is carried out by extensively reviewing the laws and regulations, as well as books related to the problems that occur.In connection with the type of research, namely normative juridical research, the approach used is a statutory approach and conceptual approach.Besides, the research also looks at the views and teachings of Law Scholars (doctrine) that develops in society.
Regarding the statutory approach, it is carried out by reviewing and analyzing various laws and regulations governing land security rights in their development until the enactment of Undang-Undang Hak atas Tanggungan (UUHT) or The Law on The Mortgage Right, especially regulations relating to parate executions.It is because there may be confusion in various regulations.There are inconsistencies, even conflicting norms (conflict of norms) between one norm with another, which regulates the execution of mortgage especially regarding parate execution (Poesoko, 2013;Kashadi, 2000).

Rescheduling
That this Policy is related to the credit period, so that the relief provided can be in the form of: a. extending the term of credit, b. extending the interval of installments.For example, the initial installment is set every month for 8 (eight) years, then it is changed to every month for 10 (ten) years.c.A decrease in the amount for each installment resulting in an extension of the credit term.

Reconditioning
In this case, the assistance provided is in the form of waivers or changes to credit terms, which include: a.Interest capitalization, i.e. interest is used as principal debt so that customers do not need to pay interest for a certain time, but later the principal debt can exceed the agreed ceiling.This means that credit facilities need to be improved.In addition, interest is calculated as compound interest which basically will be more burdensome for customers.This method is taken in case that customer's business prospect is good.b.Delay in payment of interest, i.e. interest is still calculated, but the collection or charge to the customer is not carried out until the customer has the ability.The interest owed is not subject to another interest and does not increase the credit ceiling.c.Decrease in interest rates, in the event that the customer is deemed to be able to pay interest on time, but the interest rate charged is too high for the level of activity and results of operations at that time.This method is taken when the results of the customer's operations show a surplus/profit and the liquidity allows them to pay interest.d.Exemption of interest, namely in the event that the customer/debtor is deemed unable to pay interest because the customer's business only reaches the break-even rate.This interest waiver can be temporarily, permanently, or the entire interest debt.e. Converting short-term credit into long-term credit with lighter terms.

Restructuring
If the customer's business difficulties are caused by capital factors, the rescue effort is to review the situation and condition of capital, both funds for working capital and capital goods (machinery, equipment, and management).
Actions that can be taken in the context of restructuring are: a.Additional credit (injection/nursery operation) If the customer lacks working capital, the bank as the creditor needs to consider additional credit for working capital investment, as well as in terms of investment, both expansion and additional investment.1) Additional capital from the bank by: a) Addition/deposit of money (fresh money), b) Conversion of customer/debtor debt, either interest payable, principal debt, or both.

2) Additional from the owner
If the customer is a Limited Liability Company, then this additional capital can come from shareholders or new shareholders or both.

Combination
Rescue actions can also be a combination, for example rescheduling with reconditioning, rescheduling with restructuring, and reconditioning with restructuring, as well as a combination of rescheduling, reconditioning and restructuring.

Takeover of debtor assets in accordance with applicable regulations
The takeover of the debtor's assets is in accordance with the provisions referring to the provisions of Article 12.A of Law Number 10 of 1998 concerning Amendments to Law Number 7 of 1992 concerning Banking, which regulates the possibility that Commercial Banks may purchase part or all of the collateral either through public sale or auction or outside the auction based on voluntary submission, but this facility is subject to restrictions by law, namely: a. Collateral that can be purchased by banks is collateral from bad loans, b.Collateral that has been purchased must be disbursed no later than 1 year.c.Within a period of 1 year the bank may suspend obligations related to the transfer of rights to the collateral in question in accordance with the prevailing laws and regulations.

Credit conversion into temporary equity participation in debtor companies
Reduction of arrears in interest and other businesses cannot be carried out, this step was taken after going through in-depth analysis and considering that there would be a change in the status of the bank towards the debtor.Credit conversion into temporary equity participation in debtor companies is only carried out if certain conditions are met, namely: a. Maximum investment period is 5 years or less than 5 years if the company has made a profit for 2 consecutive years, b.After 5 years it must be written off, and in this case the bank does not need a Bank Indonesia permit but must comply with the articles of association and policies of each bank.In addition, it must also pay attention to the Maximum Lending Limit (BMPK).Credit conversion must be carried out by the remaining work units with credit granting work units and led by officials who have the authority to negotiate with debtors in the context of credit conversion.

B. Repressive Legal Protection
Repressive legal protection is an effort made for the debtor of the Bank providing the Mortgage when facing the Execution Parate carried out by the Bank as the recipient of the Mortgage (Poesoko, 2013).The point is that the debtor, in this case, is trying as much as possible to make efforts to suppress and supervise juridical, in dealing with the Execution Parate for his credit guarantee in the form of a Mortgage Certificate by the Bank, namely whether the Execution Parate carried out by the Bank has gone through a justified procedure (Satrio, 1992).by law/statutory regulations, or is a form of vigilante action or unilateral action (eigenrichting), and in this case, the debtor of the Mortgage-Providing Bank, when facing the Execution Parate conducted by the Bank, may also file objections with the take steps in accordance with applicable legal provisions.
The execution of the object of mortgage is regulated in Article 20 paragraph 1 of Law no. 4 of 1996 concerning Mortgage Rights (UUHT), which stipulates that if the debtor is in breach of contract, the object of the mortgage can be executed in two ways, namely Execution of Self-Power (Execution Parate) and Executional Power of Mortgage Certificate.Meanwhile, according to the provisions of Article 6 UUHT that the creditor holding the first mortgage has the right to sell the object of the mortgage on his own power through a public auction, from the results of the auction the creditor takes for the settlement of his receivables, or what is commonly referred to as "Execution Parate" (Santosa and Ali, 1982).Settlement through these repressive measures is a step of juridical emphasis and control and is carried out in real terms when the Bank performs Mortgage Execution Parate on the debtor's credit guarantee in the form of the Mortgage Certificate, which must go through a procedure justified by law/statutory regulations.Referring to the provisions of Article 224 HIR./258 Rbg., it has been emphasized that in order to be said to have the same executive power as a court decision that has permanent legal force, an executorial title is needed so that a Mortgage Certificate is proof of the existence of a Mortgage.affixed with the words "For the sake of Justice Based on God Almighty", besides that the certificate of Mortgage is declared as Grosse Mortgage Deed insofar as it concerns land rights and execution using a mortgage institution as regulated in the provisions of Article 224 HIR./258 Rbg., As for the General Elucidation number 9 UUHT, Elucidation of Article 14 paragraph (2) and paragraph (3), and Article 26 UUHT is still subject to the provisions stipulated in Article 224 HIR./258 Rbg., where for the execution of Parate Execution must go through stipulation from the Chief Justice, thus Execution of Mortgage as the basis for its implementation (Subekti, 1976;Sofwan, 2001).
The General Elucidation of number 9 UUHT reads: "One of the characteristics of a strong Mortgage is that it is easy and certain in its execution if the debtor breaks his promise.Although in general the provisions regarding executions have been regulated in the applicable Civil Procedure Code, it is deemed necessary to include specifically the provisions regarding the execution of Mortgage Rights in this Law, namely those governing parate executive institutions as referred to in Article 224 of the Updated Indonesian Regulations (Het Herziene Indonesich Reglement) and Article 258 of the Regulation of Legal Procedure for Regions Outside Java and Madura (Reglement tot Regeling van het Rechtswezen in de Gewesten Buiten Java en Madura), In connection with that, the Mortgage Certificate, which functions as proof of the existence of Mortgage Rights, is affixed with the words "FOR JUSTICE BASED ON THE ALMIGHTY GOD", to provide the same executive power as court decisions that already have permanent legal force.
In addition, the Mortgage Certificate is declared as a substitute for the grosse acte Hypotheek, which for the execution of the Hypotheek on land is stipulated as a condition in carrying out the provisions of the two articles of the Regulation above (Assegaf et al., 2010).
In order to have a unified understanding and certainty regarding the use of these provisions, it is further emphasized in this law, that as long as there are no laws and regulations governing it, the regulations regarding the execution of the Hypotheek as regulated in the two Regulations shall apply to the execution of the Mortgage." The Elucidation of Article 14 Paragraph (2) and Paragraph (3) of the UUHT reads: "Irah-Irah which is listed on the Mortgage certificate and in the provisions of this paragraph is intended to emphasize the existence of executive power on the Mortgage certificate, so that if the debtor is in breach of contract, it is ready to be executed as is the case with a court decision that has permanent legal force, through procedures and by using the Parate Executive institution in accordance with the Regulations In UUHT there are two provisions for carrying out executions, namely as follows:

Execution through public auction
This right is granted by Article 6 UUHT jo.Article 11 paragraph (2) e UUHT or based on the executorial title contained in the Mortgage Certificate (Article 14 paragraph (2) UUHT).Public sale (auction) is carried out if the debtor is in default and cooperation with the owner of the guarantee is no longer possible.In Article 20 paragraph (1) of UUHT, it is determined that if the debtor defaults, the creditor as the holder of the Mortgage has the right to sell the object of the Mortgage through a public auction according to the procedure specified in the laws and regulations for the settlement of the receivables of the Mortgage Right holder with the right to precede other creditors (Usman, 1999).
In theory, with a special power of attorney to sell collateral as stated in the Mortgage Certificate, creditors can immediately execute the collateral by asking the auction office for assistance without asking for an execution auction order from the Head of the District Court.However, in practice, this cannot be done.This is due to the provisions in Article 1211 of the Civil Code, namely for the auction to be carried out it is necessary to have a District Court stipulation letter containing an executive order which is supported by the jurisprudence of the Supreme Court No. 3210 K.Pdt.1984, which prohibits the auction office from conducting the execution, without a court order.Therefore, to conduct a public auction, a court order must first be obtained (Widjanarto. 1993).Furthermore, the steps that need to be taken to conduct a guarantee auction in principle can be described as follows: a) Apply for determination (aanmaning).This stipulation is a warning to the debtor and/or the owner of the guarantee to carry out their obligations as stated in the Credit Agreement.The application for determination must be accompanied by relevant evidence such as a Credit Agreement, evidence stating that the debtor has defaulted, a certificate of Mortgage or Mortgage, the amount owed by the debtor.b) The District Court will issue a determination and summon the debtor and/or guarantor, if within the stipulated time the debtor and/or guarantor does not fulfill their obligations to the creditor, the Bank may apply for execution order.c) The application for the determination of execution is submitted to the Head of the District Court chosen from the area where the land is located or the District Court according to the legal domicile chosen in the credit agreement.Applications for determination of execution must be accompanied by supporting documents, such as Credit Agreements, Certificates of Mortgage / Mortgage, evidence of the amount owed, and so on.d) The District Court after examining the adequacy of the document and is of the opinion that the document has determined the confiscation of execution on the object of guarantee.The determination of the confiscation of execution will be followed by the making of a confiscation report (placement of the confiscation by the bailiff).(if any) to be reprimanded and carry out their obligations within a certain period of time (usually 8 days).e) If within the stipulated time the debtor and/or guarantor do not fulfill their obligations to the creditor, the Bank may apply for an execution determination.f) After that, it is followed by the determination of the auction, the announcement of the auction, and the implementation of the auction.The announcement of the auction must be announced twice fifteen days later in the newspaper published in the city where the land is located or the city adjacent to the land object to be auctioned.The debtor's obligation to pay off the debt lasts until the announcement for the auction is issued so that sales (execution) can be avoided.

Execution through underhand sales
Based on the agreement of the grantor and the holder of the Mortgage (Article 20 paragraph 2), the sale of the object of the Mortgage can be carried out privately if in this way the highest price can be obtained that benefits all parties.The terms of the underhand sale are as follows: a) This is agreed upon by the giver and the holder of the Mortgage, b) The implementation of the sale can be carried out after 1 (one) month has passed since it has been notified in writing by the giver and/or holder of the Mortgage to interested parties, c) Announced in at least 2 (two) newspapers circulating in the area concerned and/or local mass media, d) There are no parties who express objections, the requirements referred to in this paragraph are to protect interested parties, for example, the holders of Mortgage Rights and providers of Mortgage.

Execution via PUPN/BUPLN
If the creditor is a State-Owned Enterprise, then the one authorized to examine the breach of promise from the debtor is the State Receivable Affairs Committee/State Receivable and Auction Affairs Agency (PUPN/BUPLN) based on Law no.49 Prp 1960.
The task of this institution is to manage state receivables or state debt whose amount is fixed according to law, but the debtor/debt guarantor does not pay off properly, as well as to supervise credit receivables that have been issued by the state/agencies.Country.Whereas what is meant by state receivables is the amount of money that must be paid to the state or agencies which are either directly or indirectly controlled by the state based on a regulation, agreement, or any cause.
PUPN/BUPLN has the right of execution parate which is authorized to carry out the executorial sale (executorial verkoop) as well as the authority of the District Court based on Article 197 HIR.The auction sale still refers to the provisions of the 1908 Staatsblad Auction Regulation No. 189 (Vendu Regulation).
Meanwhile, according to Yahya Harahap stated that the application process for creditors to be able to carry out grosse deed execution, in practice it must be carried out in the following ways: equity If the additional credit burdens the customer in relation to the payment of interest, additional capital may be considered in the form of: