ANALYSIS OF LAW OF BANKRUPTCY PT.

TELKOMSEL
BASED ON DECISION NO. 704K / PDT.SUS / 2012

A. Background

One of the largest telecommunication companies in Indonesia, PT

Telekomunikasi Selular Tbk (Telkomsel) was forced to bite the fingers. Because the
panel of judges granted a petition filed by PT Prima Jaya Informatika, Telkomsel's
business partner. As for the consideration of the assembly to grant the application of
PT Prima Jaya Informatika because the requirement to file for bankruptcy has been
fulfilled, namely the existence of debts that mature and can be collected and there
are at least two creditors.

In the bankruptcy application, PT Prima Jaya Informatika accused Telkomsel of

having a bright debt and a billable amount of Rp5.3 billion and the status has been
due on June 25, 2012. This debt arises because Telkomsel refused to fulfill
Purchasing Order (PO) from PT Prima Jaya Informatika . In fact, Telkomsel has an
obligation to provide vouchers with a sports-specific theme in the amount of at least
120 million pieces consisting of Rp25.000,00 and Rp50,000.00 every year.

Kisruh Telkomsel with PT Prima Jaya started from the discontinuation of Prima
Card prepaid product from June 2012 last. PT Prima as a partner filed a bankruptcy
lawsuit against Telkomsel as it was deemed to have matured debt for the provision
of Prima card. The request for bankruptcy commenced on an agreement in July 2011
that PT Prima Jaya is entitled to distribute the Prima Card of refill vouchers and
Prime Card prepaid cards designed for national athletes for two years.

Telkomsel has the obligation to provide special sports-themed rechargeable

vouchers of at least 120 million pieces. The subsidiary of Telkom is also obliged to
provide a prepaid sports-themed prepaid card of 10 million per year to be sold by PT
Prima. However, since last June, the obligations of each party stalled with
Telkomsel to disconnect in advance even though the contract has not ended.
Nevertheless, the decision of Commercial Court central Jakarta Which is bankrupt
Telkomsel considered to have injured the law and will be a bad precedent for the
business world in Indonesia. Telkomsel can not go bankrupt only just a debt of

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about Rp 5 billion, compared with a very large corporate income with assets of
hundreds of trillion rupiah.

Telkomsel refused to be said to have debt. According to Telkomsel, PO is not

given because PT Prima Jaya Informatika has not paid the voucher that has been
made. However, the judges did not agree with Telkomsel's proposition. The
Assembly believes that Telkomsel has fulfilled the element of debt in a broad sense,
ie a stated or declared obligation with good money arising out of agreement or law.

To strengthen the argument of the verdict, the judges cited the opinion of Sutan
Remy Sjahdeini expert. This bankruptcy law expert in the trial last week said the
Bankruptcy and PKPU Law does not regulate the size of the debt. Thus, it can be
interpreted that the Law of Bankruptcy and PKPU does not matter if the assets of a
company turned out to be larger than the debt.

Related to the minimal element there are two creditors, the assembly said this
element is fulfilled. Although Telkomsel has proven evidence of debt repayment to
PT Extent Media Indonesia, the judges rejected the evidence under Article 1868 of
the Criminal Code. You see, the evidence submitted by Telkomsel is proof of
photocopy, not original proof of payment. Meanwhile, Article 1868 of the Criminal
Code requires that the strength of a document or written evidence lies with the
original deed.

The case of PT Telkomsel is a controversial case where there is a difference

between the understanding of Debt between the two sides and also the Commercial
Court judges. In addition, between both parties and judges there is also a different
interpretation of the Purchase Order as a proof of debt or not which is the beginning
of this bankruptcy request to appear. Debt is a stated or declared obligation in the
amount of money in both Indonesian currency and foreign currency, either directly
or in future or contingent, arising out of contract or law and which the Debitor shall
comply with and whenever Is not fulfilled giving the Creditors the right to obtain the
fulfillment of the Debitor's assets.

That the meaning of the debt itself extensively can mean any obligation which
can be expressed in the amount of money or not both directly or indirectly which

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 must be fulfilled by the Borrower. That in this case, the Purchase Order issued by
PT Prima Jaya Informatika is not ignored by PT Telkomsel which causes PT Prima
Jaya Informatika means that this is a debt from PT Telkomsel to be fulfilled.

In the verdict the Supreme Court is of the opinion that judex facti has wrongly
applied the law, because whether it is true that the debts of the Respondent to the
applicant in this case require proof that is not simple because the applicant's
argument regarding the existence of the applicant's debts to the petitioner was
denied by the requested party, The provisions stipulated in Article 8 paragraph (4) of
Law No.37 of 2004 concerning Bankruptcy and Delay of Obligations of Debt
Payers. Therefore in this case the truth of the existence of the debtored debtor's debt
to the bankruptcy applicant requires the existence of a complicated proof, and not
simple so that the petition of bankruptcy from the applicant does not meet the
provisions of Article 8 paragraph (4) of Law no. 37 of 2004 mentioned above so that
the settlement must be made through the District Court and not to the Commercial
Court

B. Problem
1. How the position of PT. Telkomsel as Debtor and PT. Prima Jaya
Informatika as Creditor based on Decision No. 704K / Pdt.Sus / 2012?
C. Discussion

Pengertian Kepailitan

Black’s Law Dictionary yang dimaksud dengan pailit adalah:1

“Bankrupt is the state or condition of a person (individual, partnership,
corporation, municipality) who is unable to pay its debt as they are, or become due.
The term includes a person against whom an involuntary petition has been filed, or
who has filed a voluntary petition, or who has been adjudged a bankrupt”.
Understanding given in the Black's Law Dictionary, it can be seen that the
notion of bankruptcy is related to the inability to pay from a debtor over his past
due debts. Such inability shall be accompanied by a concrete action to file,

1 www.legalakses.com/hukum-kepailitan/?fdx_switcher=true diakses pada tanggal 04 Juni 2017

pkl.20.00.

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 whether voluntary by the Debitor itself, or at the request of a third party (other
than the Debitor), an application for a bankruptcy statement to the Court.
In Article 1 paragraph (1) of Law Number 37 Year 2004 concerning Bankruptcy
and Postponement of Debt Payment Obligation stated that:
“Kepailitan adalah sita umum atas semua kekayaan Debitor Pailit yang
pengurusan dan pemberesannya dilakukan oleh Kurator di bawah pengawasan
Hakim Pengawas sebagaimana diatur dalam Undang-Undang ini.”

The bankruptcy law embraces the principle of debt as set forth in the Civil Code,
namely that debt in bankruptcy is a form of obligation to fulfill achievement in
an engagement. In the case of a person for his actions or not doing something, it
is his duty to pay compensation, to give something or not to give something then
at that time he has a debt, has a duty to perform. So debt is equal to achievement
in the engagement. Debt refers to obligations in civil law. Liability or debt may
arise either from the agreement or from the law.
Requirements for bankruptcy application as regulated in Article 2 paragraph (1)
of Law no. 37 Year 2004 Concerning Bankruptcy and Postponement of
Obligation of Debt Payment. In relation to the provisions of Article 2 paragraph
(1) of UUK-PKPU, it is necessary to understand well what is meant by "debt".
According to Article 1 Sub-Article 6 of UUK-PKPU:

“Utang adalah kewajiban yang dinyatakan atau dapat dinyatakan dalam jumlah
uang baik dalam mata uang Indonesia maupun mata uang asing, baik secara
langsung maupun yang akan timbul di kemudian hari atau kontinjen, yang
timbul karena perjanjian atau Undang-undang dan yang wajib dipenuhi oleh
debitor dan bila tidak dipenuhi memberi hak kepada kreditor untuk mendapat
pemenuhannya dari harta kekayaan debitor.”

The absence of a definition or definition given by Law No.4 of 1998 on what is

meant by debt has resulted in the following:

1. Increase legal uncertainty, as it raises the difference of opinion on the

following matters:

A. Is "any obligation of a person or legal entity to pay any amount of money

even if such obligations do not arise from debt agreements or lending and borrow

money can be classified as debt under the law of bankruptcy? In other words, is it

only the obligation to pay the amount of debt arising out of debt agreements that can

be classified as debt, or include any obligation to pay the money for which the

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obligation arises for any reason whatsoever, whether arising out of any agreement

Arising from the law?

B. Is the obligation to do something even if it is not an obligation to pay some

money, but the non-fulfillment of the obligation can cause money losses for the

party to whom the obligation must be fulfilled, can also be classified as debt under

the law of bankruptcy?

C. Is any obligation to give something, or to do something, or to not do

something, that is, as meant in Article 1234 of the Civil Code, even if it has not

caused loss can also be classified as debt as referred to in bankruptcy law?

The definition of the debt was not previously contained in Law No.4 of 1998,

the law before the enactment of Law N0.37 Year 2004, or does not provide a

definition or understanding of what is meant by "debt". Elucidation of Article 1

Paragraph (1) of Law No.4 of 1998 only states that "Debt not paid by debtors as

referred to in this provision, is the principal debt or interest." Because the law does

not define what is meant by debt, There arises a cross-over of what is covered in

terms of debt. From court decisions on bankruptcy cases it is obvious that there is a

conflict of opinion on the definition of debt.

Regarding the requirement to be declared bankrupt, Article 2 paragraph (1) of

UUKPKPU states that the Debtor having 2 or more Creditors and not paying off at

least one debt that has fallen and can be collected, declared bankrupt

A court decision, either on his own request or at the request of one or more of

his Creditor. Taking note of the above provisions, it is known that the conditions for

being subject to bankruptcy through court decisions are:

1. There are at least 2 Creditor

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 2. Debtors do not pay at least 1 debt

3. The debt has fallen and can be collected.

Article 1 Paragraph (1) of the UUK stipulates that a Debtor who has 2 or more

Creditors and does not pay at least one debt that has been matured and may be

collected is declared bankrupt by a competent court decision as intended in Article

2, either on his own request, At the request of one or more of its Creditor.

Assessed from the normative perspective, the purpose of bankruptcy and PKPU

is essentially to avoid the seizure of the Debitor's property, so that the Creditors

holders of material security rights by selling the Debtor's property regardless of the

interests of Debitor or other Creditors and to avoid any fraud committed by either

the Creditor or Debtors themselves. Strictly speaking, from the normative

perspective the purpose of bankruptcy and PKPU is oriented to the aspects and

dimensions of the Debitor's property to its creditors.

Based on the explanation of Law no. 37 of 2004 determines the existence of

several principles of Bankruptcy and PKPU. The principles are as follows:

1. The Balance Principle

The Bankruptcy Law provides for several provisions which constitute the

realization of the principle of equilibrium, ie on the one hand, there are provisions

that can prevent the abuse of institutions and bankruptcy institutions by dishonest

Debtors, on the other hand there are provisions that may prevent the abuse of

institutions and institutions of bankruptcy by the Creditor Who are not in good faith.

2. Business Continuity Principle

Under this bankruptcy law, there is a provision that allows prospective Debtor

companies to continue.

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 3. Principle of Justice

In bankruptcy the principle of justice implies that the provisions concerning

bankruptcy can meet the sense of justice for the parties concerned. The principle of

justice is to prevent the occurrence of arbitrariness of the collectors who seek

payment of their respective bills against the Debtor, with no regard to other

creditors.

4. Principle of Integration

The principle of integration in the Bankruptcy Law implies that the formal legal

system and its material law constitute a unified whole of the civil law system and

the law of a national civil event. In addition to these principles, the Act on

Bankruptcy and PKPU also regulates some new topics, namely First, so as not to

result in various interpretations in the Bankruptcy and PKPU Law concerning the

definition of debt so that it is given a clear limitation and so on the definition of

maturity. Secondly, regarding the requirements and procedures for bankruptcy

application and PKPU including the provision of a definite time frame for the

decision of bankruptcy and / or PKPU decision.

According to Bankruptcy code the parties involved in the bankruptcy process are

as follows:

1. The Debtor (Debtor) is the party who voluntarily apply for bankruptcy or

other parties who filed for bankruptcy against him

2. A Claim holder is a Creditor who selects a bill against the Debtor

3. A holder of an unsecured claim is a Creditor who has no liens or rights of

collateral to assets of Debitor or Creditor who has the right to collect with the value

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of calculation if the Debtor is bankrupt in value smaller than the Debtor's asset is

almost equal to the concurrent creditor

4. A Trustee is a representative of a Creditor who may generally be a private

person or an entity

5. United States trustees are officials of the federal government who have the

capacity and are appointed to handle administrative matters

6. A Creditor Comittee is the composition of the creditor's representatives

7. Debtor in possesion is none other Debtor who in his business activity is still

eligible to proceed, need not be declared bankrupt or insolvency but still given time

to make corrections of his business

8. The Examiner is the designated party to inspect and appraise the property of

the Debtor.

Article 2 paragraph (1), (2), (3), (4), (5) UUKPKPU indicates that the parties

who can apply for bankruptcy for a Debtor are:

1. The debtor in question

2. Creditors or creditors

3. Public prosecutor's office

4. Bank Indonesia if the Debtor is a bank

5. Capital Market Supervisory Agency (Bapepam) in the case of its Debtor

Securities Companies, Stock Exchanges, Clearing and Guarantee Institutions,

Depository and Settlement Institutions

6. Minister of Finance in the case of Debtor of an Insurance Company,

Reinsurance Company, Pension Fund or State-Owned Enterprise engaged in Public

interest.

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 According to Article 1 paragraph (1), (2), (3), (4) UUK that may file a

bankruptcy application of a Debitor is:

1. The debtor in question

2. Both the Creditors and the Creditor

3. Public prosecutor's office

4. Bank Indonesia in its Debtor is a bank

5. Capital Market Supervisory Agency (Bapepam) in the case of Debtor is a

securities company.

PT. Telkomsel sebagai Debitor dan PT. Prima Jaya Informatika sebagai Kreditor
berdasarkan Putusan No. 704K/Pdt.Sus/2012

Dalam Undang-Undang Utang No. 37 Tahun 2004 tentang Kepailitan dan

Penundaan Kewajiban Pembayaran, yang dimaksud Debitor adalah:
“Orang yang mempunyai utang karena perjanjian atau Undang-undang yang
pelunasannya dapat ditagih di muka pengadilan.”

Menurut Pasal 1 Angka (2), yang dimaksud Kreditor adalah:

“Orang yang mempunyai piutang karena perjanjian atau Undang-Undang
yang dapat ditagih di muka pengadilan.”

Syarat untuk dapatnya dijatuhi kepailitan sebagaimana diatur di dalam pasal 2

ayat (1) UU Kepailitan dan Penundaan Kewajiban Pembayaran Utang No. 37 Tahun
2004 yang berbunyi :
“Debitor yang mempunyai dua atau lebih Kreditor dan ridak membayar lunas
sedikitnya satu utang yang telah jatuh waktu dan ditagih, dinyatakan pailit
dengan putusan Pengadilan, baik atas permohonannya sendiri maupun atas
permohonan satu atau lebih kreditornya.“

Creditors are persons based on personal relationships having a subjective right to

demand the fulfillment of their claims from the debtor and are essentially
entitled to receive payment for the claim on the debtor's property. In order to be
classified as a creditor as referred to in the Bankruptcy Act, the creditor must be

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able to sue his bills in court. Therefore, what is known as a natural bond
(natuurlijke verbintenis) can not be the basis for filing a petition for bankruptcy.
The purpose of the application is as a form of compliance with the publicity
principle of being unable to pay from a Debtor. Without such a request to the
Court, the interested third party will never know the situation of being unable to
pay from the Debtor. This situation will then be reinforced by a decision of a
bankruptcy declaration by a Judge of the Court, whether it is a decision granting
or denying the petition filed.
This is because the number of decisions of Bankruptcy Commercial Court which
was canceled at the level of Supreme Court Cassation. The Supreme Court
Judge has the consideration that in examining the existence of debt can not be
examined or proven simply. This resulted in legal uncertainty, at the level of
Commercial Court was terminated bankrupt but at the appeal level in the
Supreme Court the bankruptcy decision was canceled.
As we know, PT Telekomunikasi Selular (Telkomsel) is a very healthy and well
managed telecommunication company that keeps making profits. It can be said
that the company is a company whose financial condition is still solvent.
Because based on the fact that PT Telkomsel paid a tax of Rp 8.7 trillion to the
state treasury, making it as one of the significant tax contributors in Indonesia.
Telkom's debt value is only slightly from Telkomsel's total net income in 2011
which amounted to Rp 12.8 trillion. In addition, the debt is even arguably
considering the assets of a subsidiary of Telkom which amounted to Rp 58.7
trillion. However, in the case of bankruptcy, the judges did not see the size of the
debt in the case. The guideline, is the presence of debts that are due and can be
collected. In addition, the panel of judges observes whether the requested party
has debts that are due and can be billed to two or more creditors. So also in the
proof of the existence of the debt must also be simple as stated in Article 8
paragraph 4 of Law no. 37 Year 2004 Concerning Bankruptcy and
Postponement of Obligations of Debt Payers:

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“Permohonan pernyataan pailit harus dikabulkan apabila terdapat fakta atau
keadaan yang terbukti secara sederhana bahwa persyaratan untuk dinyatakan
pailit sebagaimana dimaksud dalam pasal 2 ayat (1) telah dipenuhi.”

In the case of a bankruptcy of a company, it must be fulfilled the requirements of

the bankruptcy request itself which among others is the need for the debt itself.
In the case we are analyzing, the case of PT Telkomsel is a controversial case in
which there is a difference between the understanding of Debt between both
parties and the Commercial Court judges. In addition, between both parties and
judges there is also a different interpretation of the Purchase Order as a proof of
debt or not which is the beginning of this bankruptcy request to appear. Debt is a
stated or declared obligation in the amount of money in both Indonesian
currency and foreign currency, either directly or in future or contingent, arising
out of contract or law and which the Debitor shall comply with and whenever Is
not fulfilled giving the Creditors the right to obtain the fulfillment of the
Debitor's assets.
Debts may arise either from contracts or any of the laws referred to in Article
1233 of the Civil Code. The meaning of debt itself in the narrow sense that is
debt in the form of money, while debt in the broad sense of debt is debt that can
be assessed with money. Looking back further, that the meaning of the debt
itself can broadly mean any obligation which can be expressed in the amount of
money or not both directly or indirectly that must be fulfilled by the Borrower
On September 14, 2012 PT Telekomunikasi Selular was declared bankrupt by
the Commercial Court at the Central Jakarta District Court with decision
Number 48 / PAILIT / 2012 / PN.NIAGA.JKT.PST. PT. Telekomunikasi Selular
as an interrupted bankruptcy petitioner, filed an oral application of cassation on
September 21, 2012 as evidenced by the Deed of appeal. 52Kas / Bankruptcy /
2012 / PN.Niaga.Jkt.Pst. Jo No.48 / Bankrupt / 2012 / PN.Niaga.Jkt.Ps.
Against a request for cassation by PT. Telkomsel, On November 21, 2012 the
Supreme Court in its decision granted the PT Telkomsel cassation appeal and
annulled the Commercial Court Decision on Central Jakarta District Court
Number 48 / PAILIT / 2012 / PN.NIAGA.JKT.PST dated September 14, 2012.

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 Where in this case PT Telkomsel is treated or considered as a debtor by the
Panel of Judges of Commercial Court is a false and reversed interpretation. In
the cooperation agreement between PT Telkomsel and PT.Prima Jaya
Informatika, basically must be seen first its legal position in the cooperation
agreement between who as the actual Creditors and who as the actual Debtor.
According to Article 1 Figures (3) of the Act

What is meant by natuulirjke verbintenis is obligation civile manqué oi degeneree

means that such an engagement can not be prosecuted in court because of the
provisions of the law, whether ab initio (from the beginning) such as debt for
gambling or gambling (Article 1788 Civil Code) and thereafter as Due to the
expiration of an obligation (Article 1967 Civil Code). Briefly it can be concluded
that in a reciprocal agreement, the creditor is the party entitled to the payment of
something arising from the agreement, while the Borrower is a Contracting Party
paying for an arising out of the agreement concerned.
In the cooperation agreement between Telkomsel with PT.Prima Jaya Informatika
clearly visible content of the agreement Telkomsel provide clear rules to be obeyed
by its partners, PT.Prima Jaya Informatika on the agreement. Telkomsel Provides
refill voucher and Prime Card for sale by PT.Prima Jaya Informatika with sales
target of 120 million vouchers and 10 million Kartu Perdana and Prima Community
(10 million members). The determination of Voucher and starter sales amount is
determined by Telkomsel unilaterally based on the principle of freedom of contract
and approved to be obeyed. In the cooperation agreement, the Telkomsel Party has
performed its pretation.
Telkomsel party does not provide recharge voucher and starter card which has been
requested by PT.Prima Jaya Informatika, but it turns out PT.Prima Jaya Informatika
precisely Not Make Payments to PO NO.PO / PKIAK / V / 2012/00000026 dated
May 9, 2012 amounting to Rp4,800,000,000.00 (four billion eight hundred million
Rupiah). In the implementation of this agreement clearly visible Telkomsel is
domiciled as a creditor and PT.Prima Jaya Informatika domiciled as a Debtor
because it has an obligation to pay for what has been given by Telkomsel, and in
addition to goods that have not been paid PT.Prima Jaya Informatika also has no

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 option other than Shall comply with the Regulations in the cooperation agreement.
The Panel of Judges of the Commercial Court has been wrong in determining which
party became the Debtor and the Creditor causing misunderstanding of who own the
debt itself because of the fact that there is PT Prima Jaya Informatika has not
fulfilled payment from Purcahse Order before that made PT Telkomsel not Forward
the second Purchase Order which in this case is a proof of debt submitted by PT
Prima Jaya Informatika. The new bankruptcy law should be used if there is a debt
dispute whose value can already be categorized as bankrupting the company.

Insolvent is generally a state of an enterprise whose condition is less than its

livelihood. In other words, the company's debt is greater than the company's assets.
If this happens commonly referred to as technical insolvency. In the case of stop
paying must be an objective situation, that is because the financial condition of the
debtor has been incapacitated (in a state of inadequacy) to pay its debts. In other
words, the debtor should not simply refuse to pay his debts (not willing to repayhis
debts), but his financial objective state is not able to pay his debts (not able to repay
his debts). To determine whether the financial condition of the debtor is in a state
unable to pay the debt, or in other words the debtor has been insolvent, must be
determined objectively and independently.
D. Conclusion
Terms of bankruptcy as regulated in Article 2 paragraph (1) of Law no. 37 Year
2004 is enough if the debtor does not pay the debt to one creditor only provided that
the debtor has two or more creditors (more than one creditor). It is not required that
the finance of the debtor be in a state of cessation of its debts or in other words the
financial condition of the debtor has been insolvent. With the formulation of Article
2 paragraph (1), companies that are still solvent may be bankrupt. The Panel of
Judges of the Commercial Court must assume that in the Bankruptcy Law does not
matter
If the company's assets are larger than its debts. So with the existence of such a
legal basis that makes the Panel of Judges decided PT Telkomsel bankrupt. It can
not simply be blamed on the Panel of Judges which for a judge is correct because it

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refers to the provisions of the law, especially on this issue. But the Panel of Judges
should also have full independence in interpreting the laws and regulations.
The consideration of this assembly is also attributed to Article 1458 of the Civil
Code which states, "The buying and selling shall be deemed to have occurred
between the two parties, at which point the men reached agreement on the material
and the price, even though the material has not been delivered, nor has the price
been paid."
Related to this matter, the panel of judges is of the opinion that both parties have
agreed to make a sale or purchase of goods. Against this phrase "goods", the
assembly is of the opinion that goods are something that can be stated with money
as referred to in Article 1 paragraph (6) of Law no. 37 Year 2004 concerning
Bankruptcy and Suspension of Payment Obligation (PKPU). Hence, the judges
concluded the voucher could be called with debt. Furthermore, the interpretation of
the assembly against Article 1458 of the Civil Code is the obligation of one party to
have arisen at the time of agreement even if the item has not been paid or submitted.
In one of the principles of the Bankruptcy Act in general, it expressly states that
the "decree of bankruptcy declaration can not be imposed on the solvent debtor."
This attitude is the attitude of Faillissement verordening (Fv) as stated in Article 1
paragraph (1) before being amended By Perpu No. 1 of 1998, with the following
sounds: "Any debtor who is unable to remain in a position to stop paying his debts,
with a judge's verdict, either at his own request or at the request of one or more
other sovereign parties (his creditors ), Declared in a state of bankruptcy.
"Unfortunately this principle is not applied in the current Bankruptcy Law, namely
Law no. 37 of 2004.
The absence of the rules of bankruptcy requirements concerning insolvent
debtors in Law no. 37 of 2004, is in fact also contrary to the principle of bankruptcy
Act itself. This principle is the principle of "encouraging investment and business".
The case of Telkomsel is precisely a bad precedent to the investment climate in
Indonesia and foreign investors will be increasingly reluctant to invest here.
However, foreign loans will still be needed as a source of funds to finance national
development due to limited domestic funds. In the end the foreigners will assume
that the law of bankruptcy in the State of Indonesia is not globally accepted (global

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acceptable). Therefore, Indonesia must be firm in enforcing the rule of law so that
foreign investors get security assurance on the capital that has been invested in
Indonesia.
In fact it is often found in bankruptcy debtor proceedings that have been proven
to have more than two creditors and one of the debts is due, but can not be
bankrupted under the pretext that debtor debts are debts that are not simple
examination and are not the authority of the Court Commerce because the subject of
the dispute must be proven in the District Court.
Sutan Remy stated that the establishment of the panel of judges in the case of
bankruptcy mentioned above should be questioned. Article 8 Paragraph (4) of the
UUKPKPU shall not be construed to mean that if the petition of a declaration of
bankruptcy does not contain facts or circumstances proven simply, or in other
words, the facts and circumstances can not be proven simply, resulting in the case
being unable to be examined and decided by Commercial Court. If Article 8
Paragraph (4) of UUKPKPU is interpreted as such, then it means that in the case of
non-simplified debts examination and the facts proof and the circumstances can not
be done simply, it becomes impossible for the creditors to apply for bankruptcy
against the Debtor .
Regarding the latter, unpaid debts, a regulation that can be used quickly, openly
and effectively to provide an opportunity for parties to pursue a fair settlement. Very
complex debts are used as reasons for the Judge to prevent the debtor from being
bankrupt, and can not be examined in the Commercial Court as a bankruptcy case as
it is the authority of the District Court. This reason is not something that is true in
the trial. The panel of judges should check first, and not quickly in concluding that
complex debt cases are not the authority of the Commercial Court.
According to Victorianus M.H Randa Puang, the constraints or obstacles
encountered in the application of simple proof in the imposition of bankruptcy
decisions tend to be due to human resources in this case are the judges are less
adequate. A minimum of knowledge of the judges of the Commercial Court,
resulting in the lack of uniformity of opinion in deciding a case and defining
something, such as understanding of debt, understanding of debt maturity,
understanding of the necessity of two creditors, and so forth.

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E. Advice

The purpose of the Bankruptcy Act which was originally to liquidate the debtor's
property for the benefit of its creditors, in its development has changed. The
Bankruptcy Act becomes an important instrument to reorganize the debtor's
business when experiencing financial difficulties. This applies to corporate
insolvency. A series of developments in the Bankruptcy Act in the United States,
Britain, Australia and Germany show the same change, which leads to a process of
maximizing the value of on-going business and maintaining the social benefits of
business existence, as well as increasing bills owned by creditors .

Law 37 of 2004 needs to be revised, especially the inclusion of the concept of

insolvency test. The insolvency test is a condition to test the debtor's ability to pay
obligations. Referring to the insolvency test stipulated in the United States
Bankruptcy Act, a company requested for bankruptcy must pass this mechanism
first. That is, the new company can be filed for bankruptcy if the company is in a
state of bankruptcy. For that, with the insolvency test, the company should be able
to survive the bad creditors. Because building a company is not fast and easy. In
addition, for the sake of business and investment health, insolvency tests need to be
considered in the revision of the Bankruptcy Law. The insolvency test concept in
bankruptcy places more emphasis on the company in paying its debts.

The Judge (Commercial Court) must not only prioritize legal certainty by simply
referring to the requirement of bankruptcy petition in Article 2 paragraph (1) of
UUKPKPU, but also to consider the proportionate application of the principle of
legal certainty, justice and benefit by harmonizing or balancing the three elements
within law enforcement. The principle of legal certainty is concluded in the
application of the requirements for bankruptcy petition in Article 2 paragraph (1) of
UUKPKPU. The principle of justice in law enforcement is reflected in the principle
of fairness in court case examination, that the creditor's protection should not be
detrimental to the interests of the debtor. Therefore, the principle of justice for the
interests of both parties is strongly emphasized in UUKPKU, while the principle of
benefit can be seen as the principle of bankruptcy as the last (Ultimum remidium)
debt settlement and principle may be known by the public (open). The judge should

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see other parameters or considerations regarding the existence of debt arising
between the Debtor and the Creditor in order to provide legal certainty concerning
the application of the simple evidentiary element itself. This certainty lies in which
the judge looks at the interests and rights of the Debtor. The judge shall not be
bound by the evidence submitted by the applicants for bankruptcy by excluding the
reasons for the petition of bankruptcy. The panel of judges shall divide the burden
of proof on the basis of equality of the parties. Therefore, the judge must burden
the parties with proof in a balanced or proper manner.

The bankruptcy decision imposed by the commercial court and the Supreme
Court decision of Supreme Court must be made in no more than 60 days, whereas
the decision of the request for review must be made within 30 days. This time limit
provision is aimed at ensuring bankruptcy procedures in court are executed more
quickly. Law no. 37 Year 2004 Concerning Bankruptcy and Suspension of
Payment Obligations Debt does not provide an opportunity for unsatisfied parties
to the bankruptcy decision imposed by the commercial court to file an appeal to the
high court. This is different from the settlement of civil cases (which at that time
included bankruptcy cases) that occurred in the district court. Dissatisfied parties to
the decision of the state court bankruptcy may file an appeal, cassation or judicial
review. There is no provision to provide an appeal legal action in the RI Law no. 37
Year 2004 Concerning Bankruptcy and Suspension of Payment Obligations This
debt aims to fulfill the principle of settlement of bankruptcy cases quickly.

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