KEPASTIAN HUKUM LELANG EKSEKUSI HAK TANGGUNGAN DENGAN PENETAPAN NILAI LIMIT YANG TIDAK PROPORSIONAL

Abstract

Article 6 of the Mortgage Law grants authority to the first Mortgage Holder to sell the collateral object through a public auction if the debtor defaults. This provision is further complemented by Article 55 paragraph (1) and Article 57 of the Minister of Finance Regulation Number 122 of 2023, which regulate the obligation to determine a Limit Value and the use of an appraisal report as the basis for its determination. However, in practice, there are still instances where Limit Values are determined in an objective and disproportionate manner. Therefore, this research examines the regulation of Limit Value determination and the legal certainty of Mortgage execution auctions where the Limit Value is not based on objective and proportional standards. This research employs the Legal Certainty Theory by Jan Michiel Otto and the Theory of Property Rights by Mariam Darus Badrulzaman. The research method used is normative juridical research, utilizing library-based legal materials or secondary data consisting of primary, secondary, and tertiary legal sources. The research approaches applied include the statutory approach, conceptual approach, analytical approach, and case approach. The legal materials were collected by identifying and inventorying positive legal regulations, books, journals, and other relevant legal sources. The analysis of legal materials was conducted through systematic and grammatical interpretation as well as analogical construction. The results of the research indicate that the regulation of Limit Value determination in Mortgage execution auctions based on the Mortgage Law and Minister of Finance Regulation Number 122 of 2023 has provided a legal basis for the Seller’s authority to determine the Limit Value based on appraisal or assessment results. However, these regulations have not yet provided clear and uniform standards regarding the limits of reasonableness and proportionality of the Limit Value, resulting in discretionary space that may cause differences in legal application in practice. The implementation of auctions with Limit Values that are not objective and proportional has not provided legal certainty for the parties, as it may result in losses to the economic value of the collateral object. The determination of a Limit Value that does not comply with the principles of objectivity, fairness, prudence, and good faith may be qualified as an unlawful act, resulting in the auction being declared invalid and creating an obligation to restore the debtor’s rights over the collateral object.