English Task Paper
Istaka Karya Pass
From The Noose Of Bangkruptcy
Group
:
Sevie Nurrochmainy
Arizal Toni Hartono
Dharma Deyauddin
Bety Yuli Setiana
3B-D4
ACCOUNTING DEPARTMENT
POLYTECHNIC STATE OF UJUNG
PANDANG
2011
PREFACE
Assalamualaikum warahmatullahi wabarakatu
Praise and Gratitude to Allah SWT
author and prayed for the gift of His grace I can finish this paper. I did not forget to thank the supervisor of business law
courses Dahsan Hasan, SH. MH who helped me in
completing this paper. This paper contains the
"Istaka work Escaped Bondage Bankrupt".
Within this paper discusses the case
of bankruptcy among JAIC Istaka Istaka work where the work that owes money to
the JAIC but until now he has not paid at all, but he refused to bangkruptcy with
specific reasons
The first goal of this paper, can help
students / college students majoring in accounting in particular authors, in
menyelesaiakan tasks assigned by the supervisor of business law courses.
The author realizes that this paper is
still far from perfection, for the suggestions and criticisms of the supervisor
and the very helpful writer, so this paper could be better and finish on time.
In conclusion I thank you.
Wassalamualaikum warahmatullahi wabarakatu.
TABLE
OF CONTENT
COVER
i
TABLE
OF CONTENT
ii
PREFACE
iii
BAB
I INTRODUCTION
1.1
Background
1
1.2
Problem Statement
2
1.3 Objective Of The Writing
2
1.4 Significant Of The Writing
2
BAB
II DISCUSSION
2.1 Partinent Ideas
3
2.1.1 Definition
of Bankruptcy
5
2.1.2 Terms
Bankruptcy
11
2.1.3 Parties to Declared Bankrupt
17
2.1.4 Due Bankcrupty
20
2.2
Discussion
22
2.2.1 Why
work Istaka Bankruptcy Petition filed by JAIC rejected
22
2.2.2 Evidence
JAIC any proposed order on Istaka Bankrupt work may be granted
24
BAB
III CONCLUSION & SUGGESTION
3.1
Conclusion
26
3.1
Suggestion
27
Bibliography
28
CHAPTER I
INTRODUCTION
1.1 Background
Bankruptcy issues are always a good
long consequences For debtors, creditors and other stakeholders, especially
employees enterprise companies because after the termination of the employment
relationship will bring bad implications for company employees and their
families. More broadly, the bankruptcy will bring adverse effect on the economy
of the country. While today many companies constantly face the threat of
bankruptcy petition in commercial courts because of difficulties paying its
debt to creditors. It is certainly interesting to be studied separately.
Many
bankruptcy cases that exist in Indonesia, I took a case between JAIC with
Istaka work. JAIC sought work does not go bankrupt Istaka implement the Supreme
Court verdict which sentenced Istaka pay off the total debt outstanding of $ 7,500,000.
It is related to the agreement last December 9, 1998, issue 6 Istaka work as
bearer negotiable promissory notes with a value of U.S. $ 5.5 million. The
securities maturing a month later on 8 January 1999.
JAIC
is the bearer of the letter, but never get paid. Hence, he filed a lawsuit to
claim compensation, USS 5.5 million plus interest of USD 2 million.
1.2 Problem Statement
From
the background, while the formulation of the problem that I raised, namely:
1.
Why work Istaka Bankruptcy Petition filed by JAIC rejected?
2.
Evidence presented JAIC any order over Istaka Bankrupt work can be granted?
1.3 Objective of The Writing
Based
on the problem statement above,
the objective of the writing this paper are:
1. To find out why the bankruptcy petition was
denied.
2. To
knowing
what is the evidence
1.4 Significant of the Writing
1.
For
the writer this paper use to tell the idea and the solution of that problem.
2.
For
the reade this paper use to increase the knowledge and as a reference .
CHAPTER II
DISCUSSION
2.1 Pertinent Ideas
2.1.1
Definition of Bankruptcy
The
word derives from the French bankruptcy; failite which means congestion
payments. In grammar, bankruptcy means everything related to bankruptcy.
In
countries that speak English, to understanding bankruptcy and insolvency used
the term "bankrupt" and "bankruptcy". Against the debtor
companies that are in a state does not pay its debts is called the
"insolvency".
Trade
in Financial Economics Encyclopedia states that the purpose of the bankruptcy
is a person who is declared bankrupt by a court, and that his activities or his
legacy has been earmarked to pay its debts (Abdurrahman, A., 1991: 89). In
Black's Law Dictionary, is insolvent or bankrupt
"The
state or condition of a person (individual, partnership, corporation,
municipality) who is Unable to pay its debt as they are, or become
diligence". The term includes a person who against an involuntary petition
has been filed, or who has filed a petition voluntary, or who has been adjudged
a bankrupt.
In the Indonesian grammar, sense
bankruptcy means all matters relating to the bankruptcy. Meanwhile, according
to Law No... 37 of 2004 on Bankruptcy and Suspension of Payment (hereinafter
referred to UUK) understanding of bankruptcy is general confiscation of all
wealth management and the bankruptcy debtor pemberesannya done by curators
under the supervision of the supervisory judge.
The
definition of the notion of bankruptcy associated with the inability of a
debtor to repay the debts that have expired. Incapacity must be accompanied by
an explicit action to initiate, whether done voluntarily by the debtor himself,
or at the request of a third party. The purpose of the filing of the petition
for the fulfillment of the principle of publicity of the state cannot afford to
pay. (Ahmad Yani & Gunawan Widjaja, 2004: 11).
Gunawan
Widjaja, argues that bankruptcy is always associated with the inability of a
debtor to repay the debts that have expired. The incapacity must be accompanied
by an explicit action to initiate, whether done voluntarily by the debtor own
or at the request of a third party (other than the debtor) a bankruptcy court.
Purpose of filing the bankruptcy petition is as a form of fulfillment of the
principle of publicity of the circumstances of a debtor does not pay. This
situation was further confirmed by a decision by a bankruptcy court judge,
whether the decision to grant or refuse the petition filed bankruptcy. A debtor
cannot be declared bankrupt before any court rulings binding (incracht van
gewisde).
Bankruptcy is a way out of a
commercial nature to come out of the issue of the crushing debts of a debtor,
where the debtor is no longer having the ability to pay these debts to their
creditors. So, if the circumstances inability to pay obligations that have
matured are realized by the debtor, then the steps to apply for a determination
of the status of bankruptcy against him (voluntary petition for bankruptcy
self) to be a step that allows, or status determination by the bankruptcy court
against the debtor if later found evidence that the debtor had indeed no longer
able to pay its debts which are due and payable (involuntary petition for
bankruptcy).
So it can be concluded, bankruptcy is
a further implementation of the parity principle and the principle of pari
passu creditorium parte prorate the property law regime (vermogensrechts).
Creditorium parity principle means that all the wealth in the form of debtor
either chattels or immovable goods or property that now belongs to the debtor
and goods owned by the debtor in the future will be tied to the settlement of
the debtor's liabilities. While the principle of pari passu prorate parte means
that the debtor's assets is a mutual guarantee for the creditors and the
results should be distributed proportionally between them, unless the creditors
that there is by law must take precedence in receiving payment of bills.
2.1.2
Terms Bankruptcy
In
Article 2 paragraph (1) states that a debtor who has two or more creditors and
not pay in full at least one debt that has matured and can be billed, declared
bankrupt by the Court's decision, either on its own or upon petition of one or
more creditors petition. So, basically every debtor can be declared bankrupt
long as they meet the provisions of Article 2 of the Bankruptcy Act. Under the
provisions of the above, then the terms of the juridical order that a company
can be declared bankrupt are as follows:
1.
The existence of debt
Bankruptcy Act defines debt in its broadest sense.
Understanding the debt is not limited to debts arising from agreements debts
alone. In the Labor Law is defined as debt obligations stated or can be
expressed as a sum of money in the currency of both Indonesian and foreign
currency, either directly or that will arise in the future or contingent,
arising out of the agreement or of Act and that must be fulfilled by the
Borrower and if not met entitles creditors to receive its fulfillment of assets
Debtors.
2.
At least one debt is due
A debt that is due of course to give the creditor
the right to collect the full amount of the debtor's debts. According to Jono,
this requirement suggests that the debt must be born of the perfect engagement.
Thus the debt that was born from the natural engagement cannot be filed for
bankruptcy.
3.
At least one debt can be billed
Act to specify that file for bankruptcy can be quite
a debt that has matured. But if any of maturity utang yang always be billed.
For example, in a state that forces (force majeure) the debtor will not happen.
This should be considered as a basic reason for the decision of the bankruptcy.
4.
The existence of the debtor
The existence of the debtor shall be proved, who and
how many debts. Debtor is experiencing a state that will be bankrupt by a court
decision
5.
Any creditor
Bankruptcy Act in the elucidation of Article 2
paragraph (1) also states that a creditor may file a bankruptcy petition is the
third class of creditors, namely:
a.
Special creditors (Separatist)
Particular creditors are creditors who
have mortgages, liens, or collateral rights on other property that can execute
its own right, as if no bankruptcy occurred. Rights holders, who can execute
such rights, shall give an account to the curator about the sale of goods which
become collateral and submit it to the curator remaining after deducting the
amount owed. Secure creditor is given a special position not shared by other
creditors, namely:
1)
The position apart
2)
The position is prioritized
Separate position here means that the
property is separated or loan guarantees are not included in the bankruptcy
estate, and the execution will be done individually and in principle in the
execution without the intervention of the curator. While the priority of creditor’s
kedudukan separatist is concerned with the return on the debt first given to
him compared to the other creditors, particularly if the loan repayments are
taken from the results of the execution of the relevant collateral. The main
separatist creditors are holders of loan guarantees, debt guarantees khususnya
with property rights. Thus creditors with personal guarantees (personal guarantee)
is not a secure creditor, with a debt because there is no system of personal
guarantees certain assets specifically designated to be a guarantee of the
debt.
b.
Creditors Outstanding (Preference)
Preferential creditors are creditors
whose claim has a special status. Creditor is entitled to repayment of the sale
take precedence over the bankruptcy estate. Incidence of privileges held by the
creditor group as such right has been granted by the Act. Civil Code Article
1134 states that the privilege is a right granted by law to a claiming so that
a higher level than in the other claiming, solely based on the nature of accounts
receivable.
c.
Concurrent creditors
Unsecured creditors are creditors that
do not include special classes or special classes. Settlement of their
receivables paid back with the rest of the sale or auction after the bankruptcy
property taken part special classes and special classes, the rest of the sale
of the bankruptcy estate is divided according to the size of the accounts
receivable balance of the unsecured creditors.
6.
Creditors more than one
Bankruptcy is debt settlement receivables together
involving all creditors. Debtor's property will be confiscated and then be
divided according to the size of the debt. These borrowers only have one
creditor alone; it does not necessarily have to be by way of bankruptcy, but
settled between the debtor and the creditor in question either through court or
out of court or even the arbitration institution, so the debtor's property
should not be confiscated.
7.
Bankruptcy declaration made by a special court called the "Commercial
Court"
Article 1 paragraph 7 clearly stipulates that the
Commercial Court referred to the Court is in the public courts. The Commercial
Court is the only institution authorized to handle bankruptcy cases. As Begian
of the general court, the Commercial Court also culminated in the Supreme Court
as the highest judicial institution.
8.
Bankruptcy petition filed by the authorities
Article 2 of the Bankruptcy Act also imposes limits
on the filing of a bankruptcy petition for certain agencies are regulated in
the Act. The filing must be filed by a party who has the authority. If not then
the application should be rejected.
9.
Other juridical terms mentioned in Law Bankruptcy.
2.1.3
Can Party Declared Bankrupt
Each
person can be declared bankrupt long as they meet the provisions of Article 2
of the Bankruptcy Act No. 37 of 2004. Debtor qualifies summary proven above can
be declared bankrupt, the debtor either individuals or legal entities. Nating
According to Imran, the parties may be declared bankrupt, among others:
1) The
Individual
Both men as well as, run a company or not, ayng
married or unmarried. If the bankruptcy petition is filed by an individual
debtor who has been married, the petition may be filed only with the approval
of his or her spouse, except between husband and wife is no mixing property.
2) Heritage
The estate of someone who dies can be declared
bankrupt if the person who died was in his lifetime halt state to pay its
debts, or of his estate at the time of his death the testator is insufficient
to pay its debts. Thus, borrowers who had died still declared bankrupt on his
property if there are creditors who filed the petition.
3) Association
of the Company (Holding Company)
Bankruptcy Act does not require that a bankruptcy
petition against the holding company and its subsidiaries must be filed in the
same document. Requests may be submitted in addition to the application, also
can be submitted separately as the two petition.
4) Guarantor
Debt underwriting or borgtocht is an agreement
whereby a third party for the benefit of creditors bound themselves to meet the
debtor's obligations if the relevant debitoe can not meet its obligations
5) Legal
Entity
Piker legal entity loses power, will, and do not
have central bewustzijn. Therefore, he can not perform legal acts themselves.
He must act with the intermediaries (natuurlijke personen), but the acting is
not acting for himself but for the nam insurance and legal accountability. In
the legal entity is always represented by the organ and organ works are the
legal act itself. Organs can only bind the legal entity, if tindakanya still
within the limits and powers specified in the statutes.
6) Bank
Bankruptcy Act and PKPU distinguish between bank and
non-bank borrowers. The distinction is made in terms of who can file a
bankruptcy petition. If the debtor is a bank, a bankruptcy petition may only be
filed by Bank Indonesia, as banks loaded with public money that should be
protected.
7) Securities
Companies, Stock Exchanges, Clearing, Depository and Settlement
As a bank, and the Bankruptcy Act also distinguishes
PKPU securities firms with other debtors. When it comes to debtors who are
Securities Companies, Stock Exchanges, Clearing, Depository and Settlement,
bankruptcy petition can only be filed by the Securities and Exchange
Commission. The agency exempted by the Act because these institutions managing
public funds.
2.1.4
Due Bankcrupty
According
to Sutan Remy Sjahdeini, generally due to bankruptcy are as follows:
1) Bankruptcy
solely on the bankruptcy estate and not the debtor insolvent private self.
2) Wealth
insolvent debtor goes into bankruptcy estate a general confiscation of property
declared bankrupt parties.
3) The
debtor bankruptcy law for the sake of losing the right to mengururs and master
of wealth including the bankruptcy estate bankruptcy since the day it rubbed.
4) Any
debtor that arose engagement bankruptcy decision can not be paid from the
bankruptcy estate unless the benefit of the bankruptcy estate.
5) Assets
managed and controlled bankruptcy receivership for the benefit of all creditors
and debtors, while the Supervisory Judge to lead and oversee the implementation
of the course of the bankruptcy.
6) Claims
and lawsuits concerning the rights and obligations of the bankruptcy estate
must be filed by or against the receivership.
7) All
claims or demands which aim to obtain repayment of an engagement from the
bankruptcy estate, and of the property itself during bankruptcy debtor must be
filed by way of report to be matched.
8) Creditors
secured by a Lien, Fiduciary Rights, Mortgage, or may exercise the right
mortgage collateral as if there was no bankruptcy.
9) The
right executive creditors secured by the rights above as well as third parties,
to claim his property is in the possession of the debtor's bankruptcy or
receivership, suspended for a maximum period of 90 days after the bankruptcy
decision.
Bankruptcy
results in the loss of all rights of the debtor to take care of all the assets
belonging to the bankruptcy estate (boedel bankruptcy). Please note that the
decision does not lead to bankruptcy debtors lose their ability to perform
legal acts (volkomen handelingsbevoegd) in general, but only lost power or
authority to manage and transfer their wealth only.
Authority
of the debtor subsequently taken over by the curator. The provision is
effective since bankruptcy word decision. Bankruptcy is the entire wealth of
the debtor at the time of the bankruptcy judgment is pronounced and everything
acquired during the bankruptcy. After the declaration of bankruptcy the debtor
made any commitment with a third party cannot be paid from the bankruptcy
estate, unless the engagement-engagement brings to the profit-making of the
bankruptcy estate or to add to the bankruptcy estate.
Therefore
lawsuits filed in order to obtain compliance engagement of the bankruptcy
estate, while in bankruptcy, which is directly to the debtor filed for
bankruptcy, may only be submitted in the form of a report to a meeting matching
or verification. Any claims regarding rights or obligations related to the
bankruptcy estate must be filed by or against the receivership. Similarly, the
execution of all court against the bankruptcy estate. Execution of any part of
the court against the debtor's property before the bankruptcy began to be
stopped, but the execution was so far away that the auction has been
determined, with the permission of the curator of the supervisory judge may
continue the auction.
2.2 Discussion
2.2.1
Why work Istaka Bankruptcy Petition filed by JAIC rejected
Bankruptcy petition filed by Istaka work JAIC is
rejected because JAIC bankruptcy petition did not meet the requirements as
stipulated in Act 37 of 2004 on Bankruptcy and PKPU.
Call it like any other creditor provisions. The
reason for the trial JAIC not able to bring the creditors. JAIC is filed
evidence of other creditors during the trial, but only a copy.
Ista Works is a company which is wholly or partly
owned by the government. The company was originally owned by the Department of
Public Works in 1980 when the company was still known as PT Indonesian
Consortium of Construction Industries (ICCI).
Then, with the foundation of Regulation No. 19 Year
1983 on State Capital, the ICCI transformed into SOEs. Government capital were
included. Is as much as 50 thousand shares or 50 billion.
Bankruptcy is certainly not simple. Why, the Supreme
Court decision that said it had to pay the debt to JAIC, is still ongoing
through extraordinary legal remedy reconsideration (PK). In addition, the
company is still run by executing projects related to public interest.
SOEs
can be bankrupted. Refers to the look of the proceedings statutes Istaka work
that the company aims to pursue profits, as the principle of a limited
liability company.
2.2.2
Evidence JAIC any proposed order on Istaka Bankrupt work may be granted
JAIC parties to prepare the evidence, the trial
continued after No.73/PAILIT/- 2010/PN.NIAGA.JKT.PST bankruptcy case, in
Central Jakarta Commercial Court. The evidence in question was June a.l.
consists of five promissory notes bearer (bearer-negotiable promissory notes)
dated December 9, 1998 each of which is worth U.S. $ 1 million, as well as one
(negotiable promissory notes-bearers), dated December 9, 1998 were valued at
U.S. $ 500,000. PT JAIC includes proofs a.l. a Supreme Court ruling No.1799K /
- Pdt/2009, Determination No.1097/Pdt.G/2006/PN.Jkt.Sel Execution, Financial
Statements Istaka work in 2008.
In addition to evidence of other creditors
Binaswadaya PT Putra Perkasa, PT Saeti Concretindo rides, and PT Sumeda Masel.
On the other hand, the attorney Istaka PT Karya, Taufik Hais, said that PT JAIC
indeed had submitted evidences are considered to support the arguments with
regard to the claim that Istaka work in debt to the company. Istaka Own work,
said Taufik, is now preparing for as many as 10 to 15 evidence that would
corroborate rebuttal the state-owned company, which will be submitted to the
next trial. "Trial continues next week. Proof of our agenda. For details,
we will convey the siding that was held Dec. 1, "he said yesterday. Yesterday,
Central Jakarta Commercial Court did hold back the process of examination of
the case between the two parties.
CHAPTER III
CONCLUSION & SUGGESTION
3.1 Conclusion
1. Bankruptcy
petition filed by Istaka work JAIC bankruptcy petition was denied this because
JAIC not able to bring the other creditors when it was one of the requirements
to file for bankruptcy. Indeed, there is evidence that there are other
creditors but only a copy of it
2. The
evidence submitted by the JAIC consists of five promissory notes Bearer
(negotiable promissory notes-bearers), dated December 9, 1998 each of which is
worth U.S. $ 1 million, as well as one (negotiable promissory notes-bearers),
dated December 9, 1998 the value of U.S. $ 500,000. PT JAIC include proofs a.l.
a Supreme Court ruling No.1799K / - Pdt/2009, Determination
No.1097/Pdt.G/2006/PN.Jkt.Sel Execution, Financial Statements Istaka work in
2008. In addition to evidence of other creditors Binaswadaya PT Putra Perkasa,
PT Saeti Concretindo rides, and PT Sumeda Masel. On the other hand, the
attorney Istaka PT Karya, Taufik Hais.
3.2 Suggestion
Based
on the issues presented above, to all relevant parties in order to resolve this
case as soon as possible, so this case does not drag on. And the Commercial
Court that granted the request of bankruptcy JAIC against Istaka work although
he is concerned about the state because of this a lot of money.
And
to the reader, but read a reference from my paper, you should also look for
references about Bankruptcy in other papers because I was also still in the
learning phase.
BIBLIOGRAPHY
Gunawan,
Ahmad (2009), Law: Bankruptcy [Internet] 6 April, Available from:
http://www.kepailitan.blogspot.com (accessed 25 January 2011)
Guntarto,
Khresna (2010), the Commercial Court rejected Bankrupt Istaka work [internet]
11 November, Available from: http://www.primaironline.com (accessed 21 January
2011)
Rashid,
Herman (2008). Understanding and the terms of bankruptcy (internet). 16
november.Available from: http://www.herman.blogspot.com, (accessed 21 January
2011)
Salikh,
Rajaa (2010), Let's Learn the Law: Bankruptcy [internet] 12 December, Available
from: http://www.maribelajar.blogspot.com (accessed 21 January 2011)
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