Position and Rights of Concurrent Creditors over Assets Insolvent Debtors.

From               : A.M Oktarina Counsellors at Law

Contributors : Abdurrahim, S.H., Ricki Rahmad Aulia Nasution,S.H., Pramudya Yudhatama, S.H., Raysha Alfira, S.H., Khaifa Muna Noer      Uh’Dina, S.H., Putri Shaquila, S.H.

Reviewer        : Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv).

A. Background

As we know, bankruptcy is a condition where debtors have financial difficulties to pay their debts to creditors. In bankruptcy law, a debtor can be declared bankrupt if the debtor is in a state of insolvency or unable to pay for certain reasons, either due to the economic crisis or financial crisis. One of the important stages in bankruptcy law is the debtor who pays his debts to the party entitled to receive his receivables, namely creditors who have the privilege of obtaining the right to the payment. With the existence of bankrupt assets or so-called bankruptcy budel given to parties who are entitled to get assets for the bankruptcy assets. So there is also the position and rights of creditors based on applicable regulations.

In the bankruptcy filing mechanism, there are conditions that need attention. One of them is related to the position of the debtor, namely the debtor can be bankrupt if it has 2 (two) or more creditors and does not pay off at least 1 (one) debt that has fallen due and can be collected, and is declared bankrupt by a court decision. (vide Article 2 paragraph (1) of Law Number 37 of 2004 concerning Bankruptcy and Suspension of Obligations Suspension of Debt Payment Obligations.) (“Law 37/2004”)

The bankruptcy application will be submitted to the head of the court of the place where the debtor to be bankrupt is domiciled. Henceforth follow the bankruptcy mechanism based on Law 37/2004. Keep in mind that Law 37/2004 is also known as simple bankruptcy to facilitate the mechanism in court. Where the bankruptcy application must be granted, if there are circumstances that are proven simply, and in this case of course refer to Article 2 paragraph (1) of Law 37/2004. (vide Article 8 paragraph (4) of Law 37/2004)

Then in practice, there are several types of creditors that we will explain below, focusing on the position of concurrent creditors to get repayment of assets / assets for bankruptcy debtors.

B. Legal Basis

1. Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations. (“Law 37/2004”)
2. Law Number 28 of 2007 concerning the Third Amendment to Law Number 6 of 1983 concerning General Provisions and Tax Procedures. jo. Law Number 7 of 2021 concerning Harmonization of Tax Regulations. (“Law 28/2007“)
3. Civil Code. (“KUHPER“)
4. Regulation of the Minister of Law and Human Rights Number 37 of 2018 concerning Terms and Procedures for Registration and Submission of Curator and Management Reports. (“Permenkumham 37/2018“)

Please note the general definition of bankruptcy in Article 1 paragraph (1) of Law 37/2004 that reads:

“Insolvency is a general confiscation of all assets of the Insolvent Debtor whose management and settlement is carried out by the Curator under the supervision of the Supervising Judge as provided for in this Act.”

Based on Indonesian bankruptcy law, we can find several references, one of that is from the book Hukum Kepailitan di Indonesia by Dr. Yuhelson S.H., M.H., M.Kn that there is a classification of creditors, that is useful for the payment obligation mechanism, with levels of division of rights and positions owned by creditors, including preferred creditors, concurrent and separatist will be described below:

1. Concurrent creditors

These concurrent creditors are regulated in Article 1132 of the Civil Code.

“The goods become common collateral for all creditors against them; the proceeds of the sale of the goods shall be divided according to the ratio of their respective receivables unless among the creditors there are valid reasons for precedence.”

Based on the article above, it shows that concurrent creditors are creditors with paripassu and prorated rights. This means that the creditors jointly obtain repayment (without any precedence) calculated based on the amount of their respective receivables compared to their receivables as a whole, against the debtor’s entire wealth. Thus, concurrent creditors have an equal position over the repayment of debts from the debtor’s assets without any precedence.

2. Preferred creditors (privileged)

Is a creditor who, by law solely because of the nature of the receivable, gets repayment first. Preferred creditors are creditors who have privileges, that is a right that by law is given to a debtor so that his level is higher than that of other debtors solely based on the nature of his receivables. (According to Article 1134 of the KUHPER)

“A privilege is a right conferred by law on a creditor that causes him to be in a higher position than another solely by virtue of the nature of the receivable. Liens and Mortgages are superior to privileges, except in the law expressly specifying their merits.”

3. Separatist creditors

That is the creditor of the holder of the right of material security in rem, that in the KUHPER is called by the name of lien and mortgage. If there is only 1 (one) creditor, it is not in accordance with the purpose and bankruptcy process. In circumstances where there is only 1 (one) creditor, the usual civil path can be taken by creditors to pay off their debts. Although in the FV before Law 37/2004 was issued, there were no conditions for 2 (two) creditors. But in practice, in examining bankruptcy applications, judges always assess whether the debtor or respondent has 2 (two) or more creditors or not. [1]

Referring to the types of creditors above, when related to concurrent creditors, in its implementation, it is certainly necessary to see several regulatory provisions, one of that is contained in Article 189 paragraph (5) of Law 37/2004 that reads:

“In the event that the proceeds from the sale of the property referred to in paragraph (4) are insufficient to pay all the receivables of the Creditors who take precedence, then for the shortfall they are positioned as concurrent creditors.”

In addition, concurrent creditors have several privileges, as stated in Article 71 paragraph (2) of Law 37/2004 that reads:

“The Court shall dismiss or appoint the Curator on application or on the proposal of concurrent creditors based on the decision of the meeting of Creditors convened as referred to in Article 90, provided that the judgment is taken on the basis of an affirmative vote more than 1/2 (one-half) of the number of concurrent creditors or their proxies present at the meeting and who represent more than 1/2 (one-half) of the amount of receivables of concurrent creditors or their proxies present at the meeting.”

In the event of a division of the insolvent estate, the concurrent creditor receives his share from the Supervising Judge. This is stated in Article 189 paragraph (3) of Law 37/2004 that reads:

” Concurrent creditors shall be given such share as determined by the Supervising Judge”

Refers to the book Hukum Kepailitan: Teori Kepailitan by Elyta Ras Ginting, S.H., LL.M., written several privileges possessed by concurrent creditors, namely:

• The commercial court shall replace or add a receivership if proposed by more than 1/2 (one-half) of concurrent creditors representing 1/2 (one-half) of the bill.
• Concurrent creditors have the power to determine whether the bankrupt property is insolvent or solvent by accepting or rejecting the peace proposal proposed by the insolvent debtor. If more than 1/2 (one-half) of the concurrent creditors or their proxies present and who represent 2/3 (two-thirds) of the total amount of receivables of recognized or recognized concurrent creditors while present approve the peace proposal submitted by the debtor, then the bankruptcy property has a solvent status and the debtor’s bankruptcy ends in favor of law.
• Only concurrent creditors may vote in determining whether or not the offer of a peace proposal submitted by the insolvent debtor is accepted.
• Only concurrent creditors and receivers have the right to submit proposals to continue the business continuity of the insolvent debtor even though the bankrupt assets have been insolvent.
• The business of the bankrupt debtor must continue even though the bankrupt assets have been insolvent if proposed and approved by more than 1/2 (one-half) of the concurrent creditors whose bills are accepted or recognized temporarily.[2]

In bankruptcy there is a primacy of the division of bankruptcy assets. This is the employee’s wages and tax obligations. For wages of employees / workers can be known implicitly in the sound of Article 39 paragraph (2) of Law 37/2004 that reads:

“From the date the bankruptcy declaration judgment is pronounced, the wages owed before and after the bankruptcy declaration judgment is pronounced are debts of the bankruptcy estate.”

Slightly deviating from the provisions of bankruptcy regulations, in Indonesian tax regulations, bankruptcy assets must be prioritized for taxes from debtors. This is stated in Article 21 paragraphs (1) and (3a) of Law 28/2007 that reads:

“The State has the preemptive right to tax debts on the property of the Taxpayer.”

“In the event that a Taxpayer is declared bankrupt, dissolved, or liquidated, the receiver, liquidator, or person or entity assigned to carry out the settlement is prohibited from distributing the Taxpayer’s assets in bankruptcy, dissolution or liquidation to shareholders or other creditors before using the assets to pay the taxpayer’s tax debt.”

In terms of its relation to the distribution of bankruptcy assets, of course, the authority and duty of the receivership must have been known in Indonesian bankruptcy regulations. This is stated in Article 1 number (5) of Law 37/2004 that reads:

“Curator means the Heritage Hall or a natural person appointed by the Court to administer and settle the assets of the Insolvent Debtor under the supervision of the Supervising Judge in accordance with this Act.”

The authority of the receivership is very diverse in bankruptcy practice, one of that is related to the distribution of bankruptcy assets, one of that is stated in Article 189 paragraph (1) of Law 37/2004, namely:

“The Curator shall draw up a list of apportionments for approval to the Supervising Judge.”

In carrying out its duties and authorities, the curator is bound by Permenkumham 37/2018,  one of whose duties is to make a report when it has finished settling bankruptcy assets, as stated in Article 17 paragraph (1) of Permenkumham 37/2018 that reads:

“Curators or Management who have finished handling the management and settlement of assets of bankrupt debtors or postponement of debt payment obligations, must submit a report to the Director General through the official website of the Directorate General of General Legal Administration.”

C. Conclusion 

Regarding the position and rights of each creditor in the practice of insolvency, that it can indeed be distinguished based on its clarification, regarding the position and rights of concurrent creditors, where the creditors jointly obtain repayment calculated based on the amount of their respective receivables compared to their receivables as a whole, against the entire assets of the debtor. Although in terms of preferred creditors who have the broadest authority, in Indonesian bankruptcy regulations either implicitly or explicitly, concurrent creditors have an important role with several special features.

For further information, please call:

• partner@amoktarina.co
• pasaribu@amoktarina.co
• 0817779122

Bibliography

Yuhelson, 2019, Hukum Kepailitan di Indonesia, Ideas Publishing, Gorontalo.

Ras Ginting, Elyta, 2018, Hukum Kepailitan : Teori Kepailitan, Sinar Grafika, Jakarta.

[1] Yuhelson, Hukum Kepailitan di Indonesia, Ideas Publishing, Gorontalo, 2019, page 33-34.

[2] Elyta Ras Ginting, Hukum Kepailitan: Teori Kepailitan, Sinar Grafika, Jakarta, 2018, page 208-209.