UNRAVELING THE LEGAL POSITION OF FIDUCIARY GUARANTEES AGAINST AIRCRAFT IN INDONESIA
AMIRA JASMINE, ALI ABDULLAH

UNIVERSITAS PANCASILA

Abstract

In the corporate sector in Indonesia, of course, there are many internal interests that require large amounts of funding, the source of this funding can come from the investments of parties both domestically and foreignly, the capital market and other non-bank financing and bank credit financing. In this case, the corporate sector that requires financing through banks is a corporation engaged in air transportation which is managed by an aviation company, where Indonesia has several related companies engaged in aviation.
Specifically for implementing conventional banking credit, it is regulated in Law Number 10 of 1998 concerning Amendments to Law Number 7 of 1992 concerning Banking, where there is one of the conditions for being able to be given credit must have a guarantee.
In practice until now, aircraft mortgages cannot be implemented by a notary as a party who makes deeds regarding credit agreements, notarial banking deeds, because until now there are no implementing regulations under the Law. Considering that Indonesia as a country of law uses a statutory system as initiated by Hans Kelsen through the stufenbau theory, specifically for the installation of ship mortgage guarantees, there is a problem, namely legal vacuum. To ensure legal certainty to carry out the process of bank credit financing facilities which in practice are carried out between notaries and banks. The purpose of bank credit financing itself is to develop development based on economic principles, namely with the smallest sacrifice, a large profit can be obtained, in general, the purpose of credit economically is to obtain profits. Credit is always purposeful, therefore it is impossible for the creditor to give credit to the debtor with just no purpose or to be used in any case by the debtor.
Banks in providing credit always ensure what the use of credit is for because if there is a deviation from the agreed credit objectives, it will threaten the interests of the bank itself.
In order to process the credit financing facility, legal certainty is needed for the parties so that the goals they want to carry out can be achieved, and here the notary participates in the implementation of the credit financing facility from the bank, the notary in this case provides a solution for the existence of a legal certainty so that there is no legal vacuum, so that the financing can be carried out by the Bank, debtors and notaries as legal subjects involved in the national credit process. Here the notary then records the fiduciary guarantee using IDERA (Irrevocable Deregistration Export Authorization) to ensure the legal certainty of the debtor who pledges the component parts of his aircraft. In relation to IDERA, in order for debtors to obtain protection of interests up to the international level, the aircraft must be registered first, theoretically in the registration of rights, known as two systems, namely through the registration of deeds and registration of rights which in modern society is a state task carried out by the government in order to provide guarantees of legal certainty.
Idera here provides convenience for the execution of aircraft by deleting the Indonesian registration so that the bank can in practice announce an auction of the guarantee to the international aviation world, so remove the nationality mark and the aircraft can be executed if the debtor defaults on the promise.

Keywords: UNRAVELING, LEGAL POSITION, GUARANTEES

Topic: Law on Transportation