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Suspension of a Debt Payment Obligation by the Creditor

04 July on Berita   Tags: , ,

One of the critical changes in the enactment of Law No. 37/2004 regarding Bankruptcy and Petitions for the Suspension of Debt Payment Obligations (the new law) is to which party is entitled to apply for a Suspension (of payment ) (“PKPU” or “Penundaan Kewajiban Pembayaran Utang”). Under the new law, creditors can also apply for a PKPU.

As implemented under the previous law (Law No. 4/1998), a PKPU was voluntarily applied for by the debtor. Having received the application, the commercial court then immediately granted the debtor a temporary PKPU.

After being granted the temporary PKPU, the debtor offered a settlement to the creditors including an offer to settle its outstanding debts, following which, the debtor proposed a restructuring plan. If the debtor breached the restructuring plan, the debtor would be declared bankrupt. The procedure regulated in the new law is almost the same.

Unfortunately, an application for a PKPU from a creditor seems different. In fact, this extension of the law raises several questions concerning its implementation, as seen in the first PKPU application submitted by the creditors in the Investeringsmaatschappij Voor Vlaanderen N.V (GIMV) vs PT Cahaya Interkontinental (formerly PT. Ever Shine Corporation) case. The subject matter of the dispute was a repurchase sale of share options of an investment contract.

Unlike bankruptcy, PKPU proceedings are ex parte (without the presence of the parties). The essential difference between proceedings on PKPU and bankruptcy is regarding the existence of a debt. Usually bankruptcy proceedings are to prove that an outstanding bill is past due and payable. While before a PKPU petition is submitted, that a debt incurred under either an agreement or the Law is due and payable has already been confirmed.

By its nature, the basis of a PKPU application from a debtor is the voluntary recognition of its obligation to its creditors. This is the missing element in the above case. The debtor should have voluntarily recognized its debt before the creditor submitted the PKPU petition. Otherwise, the respondent could challenge the petition. However, debtor may challenge the petition before the application is approved.

A PKPU applied for by a creditor will be effective only if the debtor voluntary recognizes its obligation to the creditor. To ensure that debtor can not deny the debt, the creditor must prepare sufficient evidence of its claim to be presented in court.

Bimo Prasetio adalah Creative Legalpreneur pendiri SMART Legal Network dan Co Founder Qoloni.com, suatu Qolaborative platform untuk membantu proyek sosial. Dalam perjalanan karirnya, Bimo memiliki pengalaman menangani berbagai transaksi dan sengketa komersial. Bimo juga mengkampanyekan gerakan Legal4UKM dan UKM Melek Hukum yang sekarang dikelola oleh BPL Foundation agar startup dan UKM melek hukum. Bimo dapat dihubungi: info@smartlegalnetwork.com

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