Effective Legal Steps For The Company In Debt Resolution During The Corona Virus Disease Pandemic 2019 (Covid-19)

By : AM Oktarina Counselors at Law

Drafted : Abdurrahim, S.H., Rizki Tri Handayani, S.H., Imas Puji Nuryanti, S.H., and Pramudya Yudhatama, S.H.

Reviewed by : Noverizky Tri Putra Pasaribu, S.H., LL.M. (Adv).

The Corona Virus Disease Pandemic 2019 (“COVID-19”), which has many variants in it is reproduction, not only threatens human life, but also has a very bad impact on world economic activity, without exception for companies that are established in every country affected by COVID-19. As a result, Indonesia’s efforts to prevent the spread of COVID-19, known as Large-Scale Social Restrictions (Pembatasan Sosial Berskala Besar or “PSBB”) which is Indonesia’s effort to prevent the transmission of COVID-19, has resulted in the movement of people, goods, and services being severely disrupted, and even causing certain chains of economic activity to be stopped. As a result, many companies experience a decrease in income, and are also unable to pay past-due debts, while others have accounts receivable, but are unable to collect them, due to the COVID-19 condition. This article will explain some things how the settlement of companies that have debts, and companies that have receivables, can be described as follows:

1. Companies That Have Debt

Companies that have debt are required to pay debts, but as a result of the current COVID-19 pandemic, and to support government policies in preventing the spread of COVID-19, it has a very bad impact on the company, and makes the company experience a decrease in revenue, so that it is unable to carry out it is obligations make debts payments. So, how can companies settle debts that must be paid?

There are several things that companies can do to remain able to settle their debts payment obligations during the COVID-19 pandemic, which are explained as follows:

1. Restructuring Application

Restructuring is an effort to resolve non-performing loans (difficulties in paying credit principal and/ or interest), by extending the credit period, or extending the grace period (a period of leniency not to pay the principal debt).

Based on Financial Services Authority Regulation Number 11/POJK.03/2015 Year 2015 concerning Prudential Provisions in the Context of National Economic Stimulus for Commercial Banks (“POJK 11/2015”) is defined as improvement efforts made by banks, in credit activities for debtors who have difficulty fulfilling their obligations, which are carried out among others through:[1]

1. Lower lending rates;
2. Extension of the credit period;
3. Reduction of loan interest arrears;
4. Reduction of loan principal arrears;
5. Addition of credit facilities; and/ or
6. Conversion of credit into temporary equity participation.

Companies that have credit loans to banks but are unable to carry out obligations it is obligations caused by COVID-19 may apply for restructuring to the bank, as an explained under the Regulation of the Financial Services Authority of the Republic of Indonesia Number 11/POJK.03/2020 concerning National Economic Stimulus as a Countercyclical policy due to the impact of the spread of Corona Virus Disease 2019 (“11/POJK.03/2020“), banks may apply policies that support economic growth stimulus for debtors affected by the spread of COVID-19. Policies that supporting economic growth stimulus include:[2]

• Asset quality determination policy; and
• Credit restructuring or financing policies.

In terms of if companies that want to apply for restructuring to the bank, it is necessary to have good faith from the company as a debtor, namely as follows:

1. Initiative;

Companies as debtors must have the initiative or enthusiasm to continue to struggle to face business difficulties.

1. Fulll disclosure;

The company as a debtor is required to provide transparency regarding the company’s finances so that the bank can provide debt relief to the company.

1. Willing to bear losses;

Whereas in restructuring, the company as a debtor does not get a profit, but reduces the risk of loss, so that basically the debtor, and the bank both suffer losses or lose several opportunities.

1. Have a business plan;

Companies as debtors are required to have a business plan so they can see future business prospects, can make projections of the company’s direction, and make manage cash flow.

1. Application for Suspension of Debt Payment Obligations (Permohonan Penundaan Kewajiban Pembayaran Utang or “PKPU”)

Companies as debtors who have not been able to pay their debts to creditors during the COVID-19 pandemic can apply for Suspension of Debt Payment Obligations, this is explained in Article 222 paragraph 2 of Law Number 37 of 2004 (“UU/37/2004”) concerning bankruptcy, and PKPU, namely: [3]

“Debtors who do not can or estimates that they will not be able to continue to pay his debts that have matured and can be collected, can request a postponement of their debt payment obligations, with a view to submitting a reconciliation plan which includes an offer to pay part or all of the debt to creditors.”

For a company that wants to apply for a postponement of debt payment obligations, it must be submitted to the Commercial Court, and the application must be signed by the company that will submit the application, and by an advocate appointed by the company. In the event that the company that will apply for the postponement of the obligation to pay debts must attach a list containing characteristics such as the agreement, the amount of receivables, and the amount of debt from the company that has debts along with other documents such as invoices, and so on. The application letter submitted by the company can be attached to the reconciliation plan to the creditor. This is explained based on Article 224 paragraphs 1,2, and 5 of UU/37/2004, concerning bankruptcy, and PKPU whose contents are as follows:

Article 224 paragraph 1:

“Application for debt suspension of obligation to pay debts must be submitted to the Court, signed by the applicant and by his advocate.”

Article 224 paragraph 2:

“In the event that the applicant is a Debtor, the application for suspension of obligation for payment of debt must be accompanied by a list containing the nature, amount of receivables and debts of the Debtor along with sufficient evidence.”

Article 224 paragraph 5:

“In the application letter, a peace plan can be attached.”

2. Companies That Have Receivables

Behind in companies that have debt, there are also companies that have difficulties collecting debts from debtors, who have not paid their debts. During the COVID-19 pandemic, companies that have debts are also obliged to get their rights to debtors who have debts. Because to be able to stabilize the company’s finances, many companies that have receivables experience large losses due to debtors who have not paid their debts. Then what are the legal steps that companies that have receivables can take to get their rights?

There are several steps that companies that have receivables take to get their rights, which are as follows:

1. Negotiating and Mediation with Debtors

If the company with receivables has good faith to provide opportunities for the debtor, in this case the debtor performs good faith, and is comitted to settlement of the company with receivables, then the company with receivables can mediate with the debtor, by inviting and holding meetings with the debtor regarding when is the payment schedule to be made by the debtor, and in this mediation the company with receivables is entitled to a guarantee, that must be submitted by the debtor to the company that has the debt in order to guarantee the debtor, to make payment of his debt to the company that has the receivables.

1. Issue a Legal Notice Letter to the Debtor

In the event that the company that has receivables cannot tolerate debtors who have debts, then the company that has receivables can provide a legal notice letter, related to payments that have not been made by the debtor.

The summons in this case is regulated in Article 1238 of the Civil Code (Kitab Undang-Undang Hukum Perdata or KUHPer) (“1238/KUHPer“): [4]

“The debtor is negligent, if he has been declared negligent by a warrant or by a similar deed, or for the sake of his own engagement, if this stipulates that the debtor must be considered negligent with the passage of the specified time.”

In this case of granting a legal notice, there is no provision in the civil procedural law regarding who can issue a legal notice. This means that anyone as long as he has the ability to take legal action, can issue a legal notice against his counter part in an agreement that neglects his obligations. There is no obligation to have a legal representative.

1. Reporting Fraud/ Embezzlement to the Police

Basically everyone who wants to make a criminal report to the police is a right protected by law. Then the company with the receivables has the right to make a criminal report to the police, and the police report can be processed, and followed up based on the evidence provided by the company with the receivables to the police, that the debtor is clearly, and proven to have comitted a crime of fraud, and embezzlement to companies that have receivables.

1. Submission of a Civil Suit to the District Court

In this case, the company that has receivables can file a default lawsuit against the debtor through: court country based on it is legal domicile, default is regulated in Article 1243 of the Civil Code (KUHPer) (“1243/KUHPer“) which read: [5]

“Reimbursement of costs, losses and interest due to non-fulfillment of an agreement is obligatory, if the debtor, even though it has been declared negligent, still fails to fulfill the engagement, or if something that must be given or done can only be given or done in a time that exceeds the specified time.”

In this case of filing a default lawsuit to the district court, it takes quite s long time. And the steps in carrying out a default lawsuit are more or less as follows:

1. Registration;
2. Examination of the completeness of the lawsuit filed;
3. Determination of judges and appointment of substitute clerks;
4. Preliminary examination;
5. Determination of the trial day and summons of the parties;
6. Trial and reconciliation examination;
7. Proof; and;

1. Submission of a Bankruptcy Application to the Commercial Court

Not only the filling of a lawsuit for default but companies that have receivables, companies that have receivables who can also be called creditors can file a bankruptcy application to the Commercial Court against debtors who cannot pay their debts, especially when the amount of debt that has not been paid is quite large. This is explained in Article 2 paragraph 1 of UU/37/2004 concerning bankruptcy, and PKPU whose contents are as follows:[6]

“A debtor who has two or more creditors, and does not pay off at least one debt that has matured, and can be collected is declared bankrupt. With a court decision, either at his own request or at the request of one or more creditors.”

This bankruptcy application also takes a long time, it takes an estimated time of a least 60 (sixty) days, for a court decision after the date the bankruptcy statement application is filed by the company that has the receivables.

In the end, if the decision has been made on the bankruptcy application, then the curator/ heritage center appointed by the court will sell the debtor’s assets, and pay it to the creditor, namely the company that has the receivables.

Thus, the legal steps that can be taken by companies that have debt or companies that have receivables during this COVID-19 pandemic. Hopefully the explanations that have been described in this article can help companies affected by the -19 impact solve debt problems that occurred during the COVID-19 pandemic.

1. Financial Services Authority Regulation Number 11/POJK.03/2015 Year 2015 concerning Prudential Provisions in the Context of National Economic Stimulus for Commercial Banks.
2. Regulation of the Financial Services Authority of the Republic of Indonesia Number 11/POJK.03/2020 concerning National Economic Stimulus as a Countercyclical policy as a result of the spread of Corona Virus Disease 2019.
3. Article 222 paragraph 2 of Law Number 37 of 2004 concerning Bankruptcy and PKPU.
4. Article 1238 of the Civil Code (KUHPer).
5. Article 1243 of the Civil Code (KUHPer).
6. Article 2 paragraph 1 of Law Number 37 of 2004 concerning Bankruptcy and PKPU.