SUSANTI (2019) KEPAILITAN PENANGGUNG UTANG (BORG) ATAS WANPRESTASINYA DEBITOR YANG DITANGGUNG. Disertasi thesis, Universitas Airlangga.

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Abstract

Submitting a request for a bankruptcy petition against the guarantor starts to attract the interest of banks in settling debts. Judging from the decisions of granting or rejecting the application for a bankruptcy petition against the guarantor (borg) is due to the absence of norms both in the guarantee law (borgtocht) and bankruptcy law. The legal issue in this research is about what are the principles of personal guarantee (borgtocht) and ratio decidendi of a judge in passing the verdict on the request for bankruptcy petition against the guarantor (borg). This research is a normative legal research with a statute approach, a conceptual approach, case approach, and a comparative approach. This study found the principle of bankruptcy which can be applied against the guarantor (borg) due to guarantor as debtor principle in which the guarantor’s (borg) position is as a debtor who does not do his obligation in personal guarantee (borgtocht). The judge's ratio decidendi in rejecting the request of bankruptcy petition against the guarantor (borg) before the existence of UUK which was then changed into UKK PKPU was when the position of the guarantor (borg) could not be equated with the position of debtor due to the validity of guarantor as guarantor principle; therefore, the guarantor (borg) can not be asked to be bankrupt for any defaults made by the debtor. Ratio decidendi of the judge in accepting the request of bankruptcy petition against the guarantor (borg) after the existence of UUK until the enactment of UUK PKPU is when the guarantor (borg) has waived the rights and fulfill the bankruptcy requirements by having two or more creditors with at least one due and payable, and there is a fact or condition which simply proven that the requirements have been fulfilled. Ratio decidendi of the judge in rejecting the request of bankruptcy petition against the guarantor (borg) after the existence of UUK until the embactment of UKK PKPU is due to not fulfilling the the bankcruptcy requirements eventhough the guarantor has waived his rights

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