PERTANGGUNGJAWABAN PIDANA DEBITUR SELAKU PEMBERI FIDUSIA ATAS PENGALIHAN HAK OBJEK JAMINAN FIDUSIA DI INDONESIA

Abstract

Fiduciary security is a security institution that grants a preferential position to creditors. Based on Law Number 42 of 1999 concerning Fiduciary Security, the object of fiduciary security remains in the possession of the debtor as the grantor of fiduciary security based on trust. However, in practice, debtors often transfer the rights to the object of fiduciary security to third parties without prior written consent from the creditor. Such an act can harm the creditor and violate the principle of trust in the fiduciary agreement. This study aims to analyze the criminal liability of the debtor as the grantor of fiduciary security who transfers the rights to the object of fiduciary security in Indonesia. The method used is normative legal research with a statute approach and a conceptual approach. The results of the study indicate that the act of a debtor who transfers, pawns, or leases the object of fiduciary security without prior written consent from the fiduciary recipient constitutes a criminal offense. This is stipulated in Article 35 letter b in conjunction with Article 23 paragraph 2 of Law Number 42 of 1999 concerning Fiduciary Security. The penalty is imprisonment for a maximum of 2 years and/or a fine of up to IDR 50,000,000.00. This criminal offense is formal in nature and is a complaint-based offense. Thus, the criminal provisions aim to provide legal protection to creditors and create legal certainty so that the object of fiduciary security is not misused by the debtor while the debt has not been repaid.