fiduciary law part 2
law thesis
part II
Criminal Code as a parent or primary source of criminal law has been detailing the types of crime, as defined in Article 10 of the Criminal Code. According stelsel Penal Code, criminal dibedahkan into 2 groups, the criminal subject to additional criminal.Capital punishment is composed of:1. Criminal dead2. imprisonmentImprisonment is one type of criminal sanctions are most often used as a means to address the problem of crime. The use of imprisonment as a means to punish the perpetrators began in the late 18th century which is based on the ideology of individualism and humanism movement.3. Criminal confinement.4. Fines5. Criminal coverAdditional penalty consisting of:1. Criminal pencabutaan certain rights.2. Criminal deprivation of certain goods3. Announcements Decisions Criminal Justice.
Under article 69 of Criminal Code, for criminal subject to criminal yabg ringanya weight are not similar is based on sequence-urutanya in the formulation of article 10 of the criminal stelsel Indonesia under the penal law, classifying the types of criminal punishment into principal and additional penalty. The difference between the types of crime subject to additional criminal types are:1. The imposition of one of the principal types of crime are imperative (imperative), while its optional additional criminal punishment.If in the trial, the offenses charged by the public prosecutor by the judge has been proven legally and convincingly, then the judge must impose a staple of criminal types, according to the type and maximum limits in particular threatened the criminal offense in question. Dropping one of the principal criminal, according to which threatened the exercise a proven criminal offense is mandatory, meaning imperative.The nature of the imperative is actually already contained in any formulation of crime, where the formulation of the problem of crime or offense there are only two possibilities, are (a) the first diacamkan one type of criminal principal only (meaning the judge can not impose the type of criminal staple others), (b) second, an offense which is punishable by two or more kinds of basic criminal, where nature is an alternative, which means the judge must choose one course (for example: Article 362, Article 364 and Article 340 and others). As for dropping the type of additional penalty is not a necessity (facultative).If, according to the judge, for a crime or offense punishable by one type of criminal ytambahan (such as Article 242 paragraph 4 are punishable by addition: the revocation of certain rights as mentioned in Article 35 of the Criminal Code) were indicted prosecutors. The public prosecutor has been proven, the judge may impose, and may also not deciding for them.Although the basic principle that the imposition of additional criminal genius bersifa facultative, but there are also some perkecualinya, where the imposition of additional criminal became the imperative nature, for example, contained in Article 250 bis, 261 and 267.2. Imposition of criminal types with demekian principal should not impose additional criminal type (stand-alone), but impose additional criminal types should not be without the principal convict.True to its name (additional penalty), then penjatuahan type of additional penalty could not be independent and separated from the criminal staple, but can only be imposed by the judge, if within a putusanya it has dropped one of the types of criminal principal in accordance with the threatened criminal acts in question , That is the type of additional penalty can not be imposed themselves individually with the principal criminal types, but must be shared with the principal criminal types.
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While dropping the principal types of criminal is able to stand on its own, without having to impose additional criminal types. Although this type of additional penalty has demekian nature, there is
also perkecualianya, ie which type of additional penalty that can be
imposed not with the type of goods, but joint action (maan elegen) as in
Article 39 paragraph (3).3. The principal criminal type being dropped, when it has permanent
legal force (in kracht van gewijsde zaak) required action execution
(executie).Unless
the sentence imposed is subject to a conditional type of crime (Article
14a) and the conditions laid down in the decision not to be violated. Unlike
most types of additional penalty, for example, criminal revocation of
certain rights has been in effect since the verdict, the judge has
permanent legal force as governed by Article 28 paragraph (2). Therefore, it goes / dijalannya decision between the principal types
of criminal disenfranchisement of certain criminal pursuant to Article
38 paragraph (2) are not the sameIt can be concluded that contain criminal elements or characteristics as follows:1. Criminal was in essence is an imposition of suffering or sorrow or the effects of other unpleasant2. Criminal was given deliberately by persons or entities who have the power by the authorities.3. Criminal was charged to a person or legal entity (koporasi) who has committed a crime under the law.Embodiment sauatu criminal sanctions can be seen as a manifestation of the policy process through three stages:1. Stage criminal determination by lawmakers2. Stage Award or sentences by a court3. The implementation stage by the authorities of criminal executions.The
properties of the type of additional penalty as already mentioned
above, there is another type of criminal nature of the principal is a
basic principle of criminal staple, is not to be imposed in cumulation. According
to the considerations forming the Act, as described in Memorie van
Teolichting (MVT) WVS Netherlands that dropped two principal types of
criminal simultaneously can not be justified, because the criminal
deprivation of liberty have the nature and purpose of different types of
criminal penalties.Google Terjemahan untuk Bisnis
C. Overview of insurance agencyGuarantees are dependents diberijkan by the debtor to the creditor or a
third party has an interest that the debtor must choose a liability in
an engagement.In
addition ditujuk assurance that the law allows the parties to undertake
a guarantee agreement intended to guarantee repayment of the debtor or
the implementation of obligations to creditors. An example is a mortgage, fiduciary, mortgage, underwriting agreements, warranty agreements and others.The setting of Act No. 10
of 1998 actually no mention is given to the debtor, but because of the
provision of credit to be given to the debtor, but because lending is
risky, so in fact there will be no bank would give a loan without this
guarantee. Warranty didefenisiskan as "dependents granted by the debtor to the
creditor or a third party because the creditor has an interest THAT
debtor must fulfill obligations under an engagement".The term security law is terjemhan of security of law, zekerheidstelling, or zekerheidsrehten. The term security law covering collateral material capable individuals. Of
the two opinions formulation guarantees above understanding can be
concluded core of the security law is the law that governs the legal
relationship between the insurer or the insured or debtor with the
debtor and the recipient of the guarantee, warranty material includes
debts for rent, mortgage, and the mortgage. While the individual guarantees, the underwriting of debt (borgtocht).In connection with the understanding, some experts formulate general pengertia the statutory warranty guarantee. Understanding
that among other things cited by Satrio Subekti, legal guarantees are
legal regulations governing debts guarantee a creditor against a debtor.
Bottom line security law is the law governing credit guarantees someone. In addition, HS quoted Salim Vanplur also provides formulation of
legal guarantees, the overall legal rules governing the relationship
between the insurer and the insured connection with the imposition of a
guarantee to secure credit facilities.
Decree Law guarantees seminar organized by National Legal Development Agency Department of Justice in collaboration with the Faculty of Law, 9-11 October 1978, in Yogyakarta, or creditors as: "Imposition of a particular debt or loan with a guarantee (objects or people) . "Based on the above understanding, the elements contained in the formulation of the legal guarantee, which is as follows.Google Terjemahan untuk Bisnis
Decree Law guarantees seminar organized by National Legal Development Agency Department of Justice in collaboration with the Faculty of Law, 9-11 October 1978, in Yogyakarta, or creditors as: "Imposition of a particular debt or loan with a guarantee (objects or people) . "Based on the above understanding, the elements contained in the formulation of the legal guarantee, which is as follows.Google Terjemahan untuk Bisnis
1.
a series of legal provisions, both of which bersumberkan to the
provisions of the written law and the laws derived from legislation,
including yuripusensi, whether it be regulation of derivatives
(derivatives). The provisions of the law are written assurance that no legal
provisions which arise and maintained in practice the implementation of
the debt burden of a guarantee.2.
The provisions of the jamian law governing the legal relationship
between the guarantor (the debtor) and the beneficiary (lender). Ie that the insurer owes a particular material as (objects) guarantee to the insured (lender). This guarantees submitted by the debtor to the creditor. Award made by the guarantor is intended as a guarantee (dependents) for the repayment of certain debt.3. Resources and Security Legal System In The Book of the Law of Civil Law.sources of law is the place where it was found the law. In this case, the law guarantees comes from the book of the Law of Civil Law. The Book of the Law of Civil Law as a translation of Burgerlijk
Wetboek material codified civil law that was enacted in 1848 based on
the principle of concordance.Guarantee
legal provisions can be found in the book II book of the Law of Civil
Law governing the institutions and the provisions laid down starts from
the security right up to the Nineteenth Titel Titel Twenty-One, Article
1131 to Article 1232. In the articles of the draft law the civil Code regulates the diistemewakan receivables, liens, and mortgages. In detail, the material content of the provisions of the law
guarantees contained in the book Second Book of the Law - the Civil
Code, as follows:a. Chapter XIX: On-Accounts Receivable privileged (Article 1131 to Article 1149); Part unity of receivables and claims that Diistemewakan In Umumunya (Article 1131 to Article 1138);b. Part Two tenatang Privileges on Specific Museums (1139 samapai with Section 1148); The third section on All of Moving Bodies and Objects Stuck In general, (Article 1149);c. Chapter XX: On Pledge (Article 1150 to Article 1160, Article 1161 abolished).d. Chapter XXI: On Mortgage (Article 1162 to Article 1162 to Article 1178); The second part of the Accounting-Bookkeeping Mortgage and Shapes How the bookkeeping (Article 1179 to Article 1194); Part Three 'of omission Bookkeeping (Article 1195 up to 1197); Part Four of the Consequences of Mortgage (1209 to article 1220).Google Terjemahan untuk Bisnis
Employee-Employee
responsibilities assigned Saving Mortgage and Hal Knowledgeable
Register-Register by Peoples, (Article 1221 up to 1232). With
the issuance of Law No. 4 of 1996 on Mortgage of Land and Their Bodies
relating to land, then the imposition of a mortgage over land rights
besrta objects related to the land is no longer using the institutions
and conditions of the mortgage as stipulated in article 1162 until the 1232 Book of the Law of Civil Law.While
the imposition of a mortgage over the objects do not move other than
land rights besrta objects related to land, mortgage ships, for example,
still use the institutions and the provisions laid down the terms of
mortgage sebagaiman under Article 1162 to Article 1232 Kitab
Undang-Undang Hukum Civil.In
addition to regulating security rights material, in the Book of the Law
of Civil Law Regulated also the guarantee of individual rights, namely
penangugan debt (borghtocht) and dependents-bore engagement. Guarantees of individual rights are governed ", ie the Seventeenth
Titel titled" Guarantee of Debt ", which starts from Article 1820 to
Article 1850.The principle of a guarantee if ditinjaudari nature consisting of:1. Guarantee of a general nature, namely the guarantee given by the
debtor on any creditor, the rights which the bill does not have the
right to precede each other (concurrent) between creditors with each
other creditors.2. A guarantee of a specific nature, namely the guarantee given by the
debtor to the creditor, the rights of which the bill has the right
precede so located as creditors privelege (right preverennt).The existence of credit guarantees are a requirement in order to memeperkecil bank risk in lending. In
principle, the actual guarantee is not a suatukewajiban debtors,
because the type of business and the business opportunities that are
owned in essence a bank guarantee. Only if the bank gives credits to the borrowers without any collateral, then it is certain that the bank will have a huge risk. Moreover, if the business is fostered failure, greatly affect the chances of the bank for a refund lent to borrowers.One
thing that should be considered by kredidur in providing credit for
example, if one day later execution of collateral can run smoothly. It must be realized at the launch of the credit itself. Streamlining kepetingan against bank customers, these guarantees can be used as one tool. Therefore it must be held binding assurances and guarantees are
binding and must be held such guarantees if necessary should be
dieksekusi.²²Based
on the importance of collateral in credit penggikatan, then the value
and legality of the conviction is held bank guarantees must be
sufficient to ensure credit facilities received by customers. The goods are controlled by or tied juridical with the credit agreement, either under the hand or with a notary deed.Usefulness guarantees are:1. Gives the right and authority to the bank to get pelunasaan items
such guarantee if customers default, does not repay the loan at the time
stipulated in the agreement.2. Ensuring that customers participatory in business financing
transactions sehinnga slow lorises to menggalkan its business or
projected by harming himself or his company can be prevented.3.
Giving impetus to the debtor to satisfy the credit agreement, in
particular regarding the repayment under the terms that had been agreed
that he did not're losing. The proprietary rights of the goods that are guaranteed to the bank.Google Terjemahan untuk Bisnis
D. Fiduciary ReviewInsurance
agency that has long grown and developed in a society that has long
been recognized, for example fiduciary institution, pawn, (pand),
encumbrance and others. Implementation
of security institutions is based on differentiation of the types of
objects that will be pledged ie movable and immovable property. The legal basis of the provisions contained in the Law Fiduciary. Medium Section 1150 Book of the Law of Civil Law on liens and Law No. 4 Tahun1996 of Encumbrance (hereinafter referred UUTH).Fiduciary
institutions arise because the provisions of the Act governing pawn
lembagai (pand) contains many flaws, does not meet people's needs and
not dapatr follow the development of society. The
transfer of ownership of objects that become the object of fiduciary
assurance as mentioned above is done by constitutum possessorium
(verklaring van houderschap), meaning that the transfer of ownership of
an object with melajutkan control over the object with the result that
the giver of fiduciary onwards will control objects dikmasud to
kepetingan fiduciary receiver (receiver fiduciary).Fiduciary
regarded as more suitable collateral for the bank or its customers for
goods moving, because the debtor does not bother to provide a place to
store and care for their goods. On the binding of credit with fiduciary guarantee, the goods are not
delivered to the creditor but the debtor is still in power, paid in full
by the debtor, then the property of the goods moving temporarily to
creditors.Fiduciary agreement made in writing or usually poured in the notary deed. This
is done with the intent to protect and make it easier for creditors to
prove that there has been a transfer of rights ownership of the debtor. Surrender
agreement fiduciary property rights or what we often call the fiduciary
deed containing specific promises between debtors and creditors. In the deed contains rights and obligations for the parties (creditors and debtors). Then with the help of notaries, objects that are burdened with
fiduciary will didaftrarkan top receiver in the Registry Office
fiduciary Fiduciary duties are in the neighborhood of Law and Human
Rights Department.Debtors have an obligation to report on matters relating to the collateral in question. The report was carried out in order to prevent things that are detrimental to the creditors. It is given that the collateral is still arriving in the hands of the debtor. Likewise, the creditor will be limited authority in control of the goods concerned.
Fiduciary is a transfer of ownership of an object on the basis of trust provisions of the object remains in the control of the owner. Law has been formulated on the fiduciary is Fiduciary Law. Article 1 paragraph 1 of Law number 42 of 1999 on Fiduciary mention the notion of fiduciary namely: "The transfer of ownership of an object on the basis of trust that the ownership rights are still in the control of the owner of the object".This fiduciary guarantee sets out terms for a person or legal entity to ensure the goods without giving up the physical altogether. While existing rules contain provisions only the transfer of objects on mortgages, or mortgages only make the object is not moving as objects.E. Object FiduciaryIn a letter ederan Bank Indonesia No. 4/428 / BFL / PK dated 16 March 1972 which states that for movables used fiduciary or pledge, with demekian clear that what is accepted as collateral in a fiduciary is moving objects. But there is a difference between objects demekian fiduciary to pledge collateral objects. Objects are at the mercy lien debtor, being the fiduciary agreement, the object remains in power guarantee creditors.Law Fiduciary explain some objects that can be used as the object of fiduciary, which will be spread over several chapters, among other provisions are Article 1 paragraph (4), Article 9, Article 10 and Article 20. The objects of the fiduciary object is:13. The item must be able to choose and transferred legally14. Can on tangible objects.15. Can also on intangible, including accounts receivable16. Can move17. immovable object that can not be tied to the Encumbrance18. The object did not move that can not be attributed to mortgages19. Good on objects that already exist or the object to be obtained later. In this case the object to be obtained later, do not need a separate fiduciary deed loading.20. Can on a unit or type of object21. It can also be on more than one way or the type or set of objects22. Including results objects that have become the object of fiduciary23. It also includes the results from objects that have become the object of fiduciary.24. Benda stock (inventory, stock perdangangan) can also be the object of a fiduciary.
Fiduciary is a transfer of ownership of an object on the basis of trust provisions of the object remains in the control of the owner. Law has been formulated on the fiduciary is Fiduciary Law. Article 1 paragraph 1 of Law number 42 of 1999 on Fiduciary mention the notion of fiduciary namely: "The transfer of ownership of an object on the basis of trust that the ownership rights are still in the control of the owner of the object".This fiduciary guarantee sets out terms for a person or legal entity to ensure the goods without giving up the physical altogether. While existing rules contain provisions only the transfer of objects on mortgages, or mortgages only make the object is not moving as objects.E. Object FiduciaryIn a letter ederan Bank Indonesia No. 4/428 / BFL / PK dated 16 March 1972 which states that for movables used fiduciary or pledge, with demekian clear that what is accepted as collateral in a fiduciary is moving objects. But there is a difference between objects demekian fiduciary to pledge collateral objects. Objects are at the mercy lien debtor, being the fiduciary agreement, the object remains in power guarantee creditors.Law Fiduciary explain some objects that can be used as the object of fiduciary, which will be spread over several chapters, among other provisions are Article 1 paragraph (4), Article 9, Article 10 and Article 20. The objects of the fiduciary object is:13. The item must be able to choose and transferred legally14. Can on tangible objects.15. Can also on intangible, including accounts receivable16. Can move17. immovable object that can not be tied to the Encumbrance18. The object did not move that can not be attributed to mortgages19. Good on objects that already exist or the object to be obtained later. In this case the object to be obtained later, do not need a separate fiduciary deed loading.20. Can on a unit or type of object21. It can also be on more than one way or the type or set of objects22. Including results objects that have become the object of fiduciary23. It also includes the results from objects that have become the object of fiduciary.24. Benda stock (inventory, stock perdangangan) can also be the object of a fiduciary.
Object fiduciary object is any object that can be owned and transferred ownership rights. These objects can be objects of tangible or intangible, registered or
unregistered movable or immovable under the condition that the object
can not be burdened with mortgage.Practice
goods delivered as a fiduciary are the objects / items
socio-economically able to support the smooth running of a business /
company. Goods such as motor vehicles, stock merchandise, inventory, and other vice versa. And
this can not hampering business activity because of the shipment
guarantees in fiduciary done constitutum possessorium, meaning that the
goods delivered as credit insurance remained at the mercy of the parties
in the guarantee / debtors. Because the left is his property, then the control / use goods such
guarantees by the debtor only in kepastianya as borrower wear.As collateral Organization, as well as mortgages and creditverband and
pledge, fiduciary ascessoir was an agreement, so that before held
fiduciary agreement, first there must be a principal agreement, in this
case the Recognition Debt Credit Agreement.Article 34 of Law No. 42 of 1999 on Fiduciary:(1) In the case of basil execution exceeds the value of the guarantee,
fiduciary Recipients are obliged to return the excess to the Giver
Fiduciary.(2) If the result of the execution is not sufficient for debt repayment the debtor remains liable for unpaid debts.Models execution according Fiduciary Fiduciary Law are as follows:a. By fiat of execution (using a title eksekutorial), namely through a court order.Fiat execution of an execution carried out by auction after approval
by the Chairman of the Court in the form of the establishment of the
Chairman of the District Courts.b. In parate execution, namely by selling (without a court warrant) in front of a public auction.c. Sold under tanggan by the creditors themselves.
F. Violations-Abuse In Fiduciary AgreementThe
credit agreement is done by the banks, the banks must act carefully
with due regard to the principles of a healthy credit ie with the
capability and willingness to repay its debt corresponding agreement. To obtain this conviction, before the credit disbursed by the bank
should conduct a careful assessment of the character, capacity, capital,
collateral and business prospects of the prospective customer.Understanding
fiduciary as stipulated in Article 1 paragraph 1 of Law No. 42 of 1999
on Fiduciary Transfer of Rights is ownership of an object on the basis
of trust with the provision that transferred ownership of the object
remains in the control of the owner of the object. Based on that definition, there are three (3) characteristics of fiduciary namely:1. The transfer of ownership of an object;2. On the basis of trust;3. It was fixed in the control of the owner of the object.Each object encumbered with a fiduciary guarantee shall be registered in Fiduciary Registration Office. As the recipient of fiduciary (creditor) or power or his representative. Fiduciary
Registration Office will be recorded in the Register of fiduciary
Fiduciary on the same date as the date of the registration application
for registration receiver fiduciary guarantee. Fiduciary recording date on the Register of Fiduciary is regarded as the birth date Fiduciary security.Since
the enactment of Law No. 42 of 1999 on Fiduciary, implementation is
still a good law violations committed by the creditor (recipient of
fiduciary) or by the debtor (the giver of fiduciary). Violations-law violations both by the creditor (recipient of fiduciary) or by the debtor (the giver of fiduciary). The violations are often committed by the creditors is as follows:1. The creditor does not register the object of fiduciary Registration Office FiduciaryThis offense is usually done by Bnak Rural (BPR) and commercial banks to the value of a loan. In this case the bank is ready to bear the risk in case of bad credit. Financing Institutions (finance) also many who do not enroll
fidusianya assurance for reasons of efficiency in the face of
competition with other financial institutions.Article
11 (1) of Law Number 42 of 1999 on Fiduciary already set that the
object encumbered with a fiduciary must be registered. Against
fiduciary that is not registered, the provisions of the law on
Fiduciary not berlaaku, in other words for the entry into force, the
provisions of the Law on Fiduciary then it must be satisfied that the
object is registered fiduciary. Creditors
who do not register the object of fiduciary Registration Office
Fiduciary could not enjoy the benefits of the provisions in the
legislation fiduciary such as preferential rights or rights of
precedence.Google Terjemahan untuk Bisnis
Another
consequence of the registration of an object with no fiduciary is if
the debtor defaults, the creditor can not direct the execution of
fiduciary but must go through a civil lawsuit in court based on the
provisions of the Civil Law Act (KUHPPerdata). If the existing court decision which has obtained permanent legal
force then it will be requested for the execution of the object of
fiduciary.2. Registration of fiduciary done after the debtor defaults.This violation is carried out by the institution (Finance) for reasons as explained above. By
the time the debtor began to default, the new finance company
registered fiduciary object in order to be eligible for execution
terhadapa fiduciary object. Triggers
action is because the finance institutions in the Law on Fiduciary not
set provisions regarding registration expired so Jamnian fiduciary
Fiduciary Registration Office had no reason to refuse registration of
fiduciary diperjanjian credit has been signed for a long time (usually
2-3 years before it is registered) ,Although
there are no rules on fiduciary assurances registration expired, but in
Article 14 sub 3 of Law No. 42 of 1999 on Fiduciary been arranged that
the fiduciary born on the same date as the date of registration of
fiduciary guarantee as recorded in the Register of Fiduciary. Therefore,
if there is a loan agreement that was made several years ago but the
new fidusianya guarantee registration carried out later, the entry into
force of fiduciary it is at the moment not registered at the time the
loan agreement is signed or upon signing the notarized deed. Consequently there is a law of the events that occurred before the
registration of fiduciary guarantee does not apply the provisions of the
Law on Fiduciary.3. The agreement is bound by fiduciary but the object is not an object
of reflection fiduciary, such as lease rights, right to use and lease
(leasing).It is more due to ignorance of the creditor against the legal aspects of the fiduciary. The
object that is the object of the lease, right to use or lease purchase
is not the right material so it is not an object of fiduciary and
therefore can not be registered in Fiduciary Registration Office. Because it is not a fiduciary guarantee object, then if the debtor
defaults, the creditor does not have preferential rights and can not
make the execution of the object of the guarantee as stipulated in the
Law on Fiduciary.4. Creditors execution of fiduciary object that is not in accordance with article 29 of the Law on Fiduciary.If
the debtor defaults by not repay their debts according the agreement,
it can be carried out executions of fiduciary object that has been
registered in Fiduciary Registration Office for the repayment of the
debt. In Article 29 of Law No. 42 of 1999 on Fiduciary set on the way to execution, namely:Google Terjemahan untuk Bisnis
1. Implementation eksekutorial title referred to in Article 15 paragraph (2) of Law Number 42 of 1999.In a fiduciary guarantee certificates are irah-irah "Based JUSTICE BY
ONE ALMIGHTY GOD" so as to have the same strength eksetorial court
decisions that have obtained permanent legal force.2. Sale of the objects on the power receiver fiduciary fiduciary itself through a public auction,3. Sales under the hand made by agreement between the giver and the
recipient of the fiduciary to obtain the highest price mengutungkan both
sides.In
the case of executions carried out by sales under the hand then be made
after the expiration of one (year) months since notified in writing to
the parties concerned and published in at least two (2) newspapers
circulating in the area concerned. The procedure is often violated by financial institutions (finance) in the execution of the object of the guarantee. Usually
Finance will menguanakan services of a debt collector went directly to
debtors and take the vehicle object and then by finance bail will sell
them to traders who have become their relationships. Proceeds
from the sale was not notified to the debtor or whether there are
remaining there are still shortcomings in comparison to the debt of the
debtor. Against the execution of which is contrary to Article 29 ketetentuan
Umdang Law No. 42 of 1999 on Fiduciary result in execution so that
unauthorized parties of fiduciary giver (debtor) may sue for the
cancellation.Besides
conducted by the creditor, the law violation of the provisions of Law
No. 42 of 1999 on Fiduciary also be made by the debtor. Violations often done the debtor is as follows:1. Debtor warrant further object of fiduciary (re Fiduciary)Law
on Fiduciary prohibits a fiduciary action again as stipulated in
Article 17. This provision is made in order to protect the interests of
the creditors that have provided loans to borrowers and collateral
objects still controlled by the debtor. The
provision is very logical because on the object of fiduciary ownership
rights meant was "switched" from fiduciary giver (the debtor) to the
fiduciary recipient (creditor) so it is not possible anymore pledged to
another party. If on the same object becomes the object of more than one fiduciary
fiduciary agreement, the rights that take precedence as dikmasud in
Article 27 is given to those who first enrolled in Fiduciary
Registration Office (Article 28).2. Giving fiduciary (debtor) pawning, assign or sublet without permission object fiduciary fiduciary recipient (creditor).This is usually done by debtors who have received financing from
finance companies for the purchase of motor vehicles, where the debt is
not paid off but kendarannya has been mortgaged under hand to a third
party.Against
perbuatanya the Article 36 of Law Number 42 of 1999 on Fiduciary has
set criminal sanctions for the debtor mengadaikaan or divert objects
jamiann fiduciary without the consent of the creditors are threatened
with imprisonment of 2 (two) years and a maximum fine of Rp 50,000. 000, - (fifty million rupiah).3. Debtor or megganti change and the contents of objects that become the object of a guarantee that quality to be down (bad). For example, replace the motor vehicle parts with counterfeit parts or parts former.The
act of the debtor can not be justified because at the time of the
signing of the credit agreement and the agreement fiduciary security,
ownership of objects fiduciary "switch" from lender fiduciary (debtor)
to the recipient fiduciary (creditors), so the giver fiduciary (debtor)
to the recipient fiduciary (creditors ),
so the giver fiduciary (debtor) only "regarded as a tenant" who have an
obligation to maintain, preserve and put the object guarantees
diuasainya well.Google Terjemahan untuk Bisnis
The elements of a criminal act as follows:a. Behavior and effects (actions)b. Matters or circumstances that accompany the actc. Additional aggravating circumstances of criminald. Subjective elements of unlawfulnesse. Elements unlawful objectiveHowever demekian with lack of uniformity views and definitions are
incomplete according to the dualistic view of the description of the
offense, the elements of an offense, the elements of an offense in
general as follows:1. Acts of active or passive2. Effect (only on offense materially)3. Unlawfully formal and material4. The situation following or additional kedaan5. The situation that objectively the fixing of criminal6. There is no basis justifying and forgiving baseThe explanation of the elements are as follows:1. Acts of active and passiveAn act which is said to be active and passive act if the act was done
unwittingly although summarized by a law that has not been written or
unwritten is straf baar hadling (crime) if it is not seen as a
disgraceful act and bad in human beings in general.Andi Zainal Abidin Farid argues as follows; "An act so so active or passive then said to be against the law when
it conflicts with the law and is also contrary to the public's sense of
justice, in other words contrary to the law of the written and
unwritten."2. Effect (only on offense materially)As
a result of the offense only on the material is a certain result in the
offense so that the draft Penal Code itself is not easy to give rules
or instructions on how to determine the effect on offense maker. Andi Zainal Abidin Farid stated as follows: Just specify in some
passages, that for the offense -delik necessary to have a certain result
in order to be able to convict the author.3. Unlawful Formal and PetitionAgainst formal law is an element of the positive law only. So it is an element of a criminal offense and the material itself. While
the definition of unlawful material is against the law in the broadest
sense as an element which is not only against the written law alone. A criminal action can generally lost its character as against the law
not only by a provision of the law but also based on the principles of
the law is not written and the general nature.Formally, it is clear that the acts prohibited by laws - laws or acts
that violate the order in the Act, because contrary to what is
prohibited by or ordered by law.4. The state of the following or additional stateIt says the following, if the act was an evil and terlaksanaan pemufakatan their reporting on the authorities. Sometimes in the formulation of certain criminal acts found the existence of certain additional exposures as well. For example, in Article 164, Article 165 of the draft Penal Code is an obligation to report it to the authorities. If you know the occurrence of a crime, if the crime actually occurred, then the crime is an additional element.5. Article 351 paragraph (1) and (2) of Article 352 (1) and (2) and Article 354 (2) Penal Code. Circumstances which are not desired but objectivelyObjectively the friendship criminal is located on the objective circumstances of the offense maker. If this regular persecution resulted in serious injury or death. About severe injuries seen in Article 90 of the Criminal Code6. The absence of basic justification and basis forgivingA justification, which the nature of the unlawful act to remove your
hand and has not been proven, so the accused should be acquitted by the
judge;a. An
excuse that a criminal act has been proven elements - all elements, but
the elements of no fault on the manufacturer in this case the defendant
should be released from all charges.
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