fiduciary law part 3
law thesis
part III
CHAPTER IIIRESULTS AND DISCUSSION CHAPTERA. Ketetentuan Law Against violations Fiduciary Transfer of Object Seen From Law No. 42 of 1999 on FiduciaryThere
are some other differences between the agreement and the agreement
accounts payable, which lies in the nature of the agreement. The credit agreement is konsensuil currently payable is the real deal. Real meaning: "that there is a new agreement after the money lent in the credit agreement submitted by the real debtors".Crimes against the fiduciary guarantee to do the form of embezzlement or theft. There is a miraculous difference between wiping with theft.The difference is:A. About the deed to the material. In
wiping is an act has, to the theft of theft is taking on no element
has, in the form element has, in the form of subjective elements. In pengelepan element has the element of behavior, in the form of objective elements. For the completion of wiping action required on complete realization
had, was the theft of the deed took it, not the element has.B. About beradanya of the object at hand petindak crime. In
the theft, the object is in the hand / power petindak result of taking
action, it means the object is in power because of a crime (theft). But at pengelapan not, the object is within its remit because the deeds in accordance with the law.Violations-this
offense is often done by the debtor usually diketahuii, if the debtor
is unable to perform its obligation to pay the ring in a certain period
of time, eg two-month / three months delinquent installments. Although usually when the late limit installment payment due date is
usually the company will bill you by phone or via the collector field
directly to the home debtors.Defendant in transferring objects fiduciary without permission is illegal. An act is said to be against the law if it violates the laws laid down by law. Not all crime is against the law because no justification, under Article 50, Article 51 of the Criminal Code. The nature of the law against itself includes:a. Formal nature is that such actions are regulated by law.b. The nature of the material is that they do not always have to be set in the community.Tort can be distinguished:a. Funsi negative acknowledge the possibility that things outside the law
to remove the unlawful nature of an act that meets the formulation of
legislation.b. Positive function is to admit that one is a criminal offense although
it was not punishable by law, if it is contrary to law or the rules that
exist outside the law.Nature against the law to set forth in the legislation explicitly be proven. If the elements against the law is considered to have a positive functionGoogle Terjemahan untuk Bisnis
for an offense then it must be proven. If the elements against the law is considered to have a negative function then it is not necessary dibultikan.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 dikmasud
kepemilikanya rights have been "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 referred to in
Article 27 is given to the parties in advance mendaftarkanya in
Fiduciary Registration Office.But at this stage the company has not done any action, only recently
fined for exceeding the time of payment due, calculated per day with a
predetermined calculation based on those of a number of installments.As
for debtors who have menuggak for three consecutive months, then the
company, usually specifying the clauses that with the consent or without
the consent of the debtor is entitled to take by force the vehicle as
collateral, because based perjanjijan leasing these actions are the
result of a joint agreement between creditors and debtors.Fiduciary must be registered, and if it is not registered fiduciary guarantee then it is not a guarantee object. Benda loan guarantees and not the object of fiduciary guarantee. As collateral, the applicable law is certainly agreement that stipulated in the Civil Code.And to take goods out of the hands of the debtor anaesthetized, it must be through a civil lawsuit. In
fact, lots of Finance or financial institutions when it entered into
its accounts payable (ala fiduciary) often complement the agreement with
the Letter of Authorization Decision collateral. This is to simplify or avoid the lawsuit.In
the conception of criminal law, the object execution fiduciary
underhand into the criminal act of Article 368 of the Criminal Code
states if the creditors do coercion and the threat of expropriation. This article states:1.
Whoever with intent to mengutungkan yourself or others unlawfully,
forcing a violent or others unlawfully, force a coercive force to
deliver the goods things that are entirely or in order to create or
eliminate debt receivable, threatened for extortion with a maximum imprisonment of nine months.2. The provisions of the second paragraph of Article 365 (2), third (3) and fourth (4) applies to this crime.This
situation can occur if a creditor in execution melakuakan coercion and
take the goods unilaterally, but known in these goods partly or wholly
owned by others. Although
well known that most of the goods are owned by creditors who want to
execute but is not registered in the fiduciary office. Even the imposition of any other section can occur given thatGoogle Terjemahan untuk Bisnis
everywhere execution is not easy, for it will take legal security and support law enforcement agencies legally. This is the urgency of legal protection balanced between creditors and debtors.One of the examples contained in the Decision of the Supreme Court Decision No. 2120 K / Pid.Sus / 2010. With
Fiduciary agreement that has been registered in accordance with the
Fiduciary Certificate No. 10-7558 HT 04 W .06 in 2008 (STD) of 10 July
2008. That is based on consumer financing agreement dated December 27,
2007 No. 013 1:01. 000
6728/08 with a value guarantors of Rp.18.000.000, - (eighteen million)
and in the agreement was approved by 36 (thirty six) months /
installments and expire on 28 December 2010 with installments
Rp.500.000, - (five hundred thousand rupiah) per month with a maturing every 28th of the month of the next.The
defendant as the authorizing start the third installment (dated March
28, 2008) had never mengansur already eleven installments commencing
from April 2008 samapai January 2009. Without the permission of the
recipient informing and Fiduciary namely PT. SAF
motorcycle brands Honda Revo blue No.Pol.AG 4427 KT Nosin
HB62E-1268521, Noka MHIHB62188K272070 been sold off to witness a price
Rumaji Rp4,000,000, - (four million). Here STNKnya without BPKB through Samidi witnesses. Defendant threatened and convicted in Article 23 paragraph (2) Jo. 36 of Law No. 42 of 1999 on Fiduciary.By
creditors, but this also could be a blunder because it can be mutually
report because most of the items belong to both both creditors and
debtors, civil decisions required by local courts to menundudukan
portion of each owner of such goods to both sides. If it is taken there will be a long legal process, laborious and not cost you a bit. Consequently, the company's margins to be achieved is not realized even possible loss, including loss of time and thought.Financial
institutions that do not register with fiduciary guarantee the actual
loss itself because it does not have the legal right to eksekutorial. Business problems that require speed and excellent customer service are not always in line with the logic of existing law. Perhaps because of a legal vacuum or laws that are not always as fast as the times. Imagine, the fiduciary must be made before a notary public while
making agreements and financing institutions in the field of fiduciary
transactions in a relatively quick time.
Today many financial institutions to execute on the object of fiduciary dibebanin items that are not registered. Can be called remedial, rof coll, or remove. During these finance companies feel their actions are safe and smooth course. According to the authors, this is the case because it is still weak bargaining power of customers to the creditor as the owner of the funds. Plus the legal knowledge society is still low. This weakness exploited by the financial industry businesses, kususnya sector financial institutions and banks were running the fisuia assurance practices with deed under the hand. Where Financing Institutions (leasing) not register Fiduciary the relevant authorities, even after obtaining authorization from the giver fiduciary to register fiduciary question, then if there is a transfer, pledge or lease the objects that become the object of Fiduciary conducted without the prior written consent precede.
Today many financial institutions to execute on the object of fiduciary dibebanin items that are not registered. Can be called remedial, rof coll, or remove. During these finance companies feel their actions are safe and smooth course. According to the authors, this is the case because it is still weak bargaining power of customers to the creditor as the owner of the funds. Plus the legal knowledge society is still low. This weakness exploited by the financial industry businesses, kususnya sector financial institutions and banks were running the fisuia assurance practices with deed under the hand. Where Financing Institutions (leasing) not register Fiduciary the relevant authorities, even after obtaining authorization from the giver fiduciary to register fiduciary question, then if there is a transfer, pledge or lease the objects that become the object of Fiduciary conducted without the prior written consent precede.
Fiduciary receiver is referred to in the scope of civil cases. If sipemegang pawn in need of cash, being the owner of the goods has
not been willing to make up the goods, then the pawn sipemegang entitled
to transfer (overdragen) lien to another person and accept payment in
cash from a third, if only to be informed about this pledge sipemberi
this pengaliha.But
if Fiduciary dikmasud was registered to the appropriate authority, then
in case of diversion, pawning, or lease objects that become the object
of Fiduciary conducted without the prior written consent of the Receiver
fiduciary, the Giver Fiduciary can be charged in a criminal case as
referred to in Article 36 Law of the Republic of Indonesia Number 42 Year 1999 challenge Fiduciary mentioning:Giver
Fiduciary transfer, pawning, or rent object which is the object
Fiduciary as referred to in Article 23 paragraph (2) were done without
perstujuan prior written Receiver fiduciary, dipidan with maximum
imprisonment of 2 (two) years danm fine of not more Rp. 50.000.000, - (fifty million rupiah).In
practice it is also not uncommon Financing Institutions (Leasing) told
Giver Fiduciary again bogged down payment, that the object Such
guarantees have been installed and / or didaftrakan, however Financing
Institutions (Leasing) is not showing Certificates Fiduciary, so for the
layman it the sometimes make a bogey and scare it, but if the Fiduciary is not
registered with the authorities, then the problem is just purely a civil
matter only, no relation to criminal issuesSome of the mistakes made in the implementation of Fiduciary debtors, among others:1. Giver fiduciary (debtor) pawning, transfer or lease object fiduciary fiduciary ytanpa permission of the recipient (creditor).This
is usually done by debtors who have received funding from the company
to finance its purchasing motor vehicles, where the debt is not paid off
but the vehicle has been mortgaged by under the hands of third parties.
Against such acts, Article 36 of Law No. 42 of 1999 has been set criminal sanctions for the perpetrators of the debtor.2. Debtor modify or replace the contents of the object that becomes the object of a guarantee that quality to be down (bad). For example, change their motor vehicle parts with counterfeit parts or parts former.The
act of the debtor can not be justified because at the time
ditandatangganinya credit agreements and treaties fiduciary security,
ownership of objects fiduciary has "switched" from lender fiduciary
(debtor) to the recipient fiduciary (creditors), so the giver fiduciary
(debtor) only "regarded as tenants "who have an obligation to maintain, memlihara and put objects under their control with good warranties.In
case the debtor defaults, the object of inventory that has a guarantee
for pelunasaan debts to creditors submitted to creditors (Article 30
UUJF) with the proviso that if there are objects supplies that have been
transferred by the debtor, it shall first be replaced with an
equivalent value by the debtor, because creditors bore no liability for the debtor as a result of acts or
omissions whether arising in contractual relationships or arising darin
tort with respect to the use and transfer of objects that made the
object of fiduciary (Article 24 UUJF).Bedarsarkan
Article 5 (1) UUJF, binding agreement collateral for moving objects
must be made by a notary and subsequently under Article 11 paragraph
(1), warranty deed which shall be notarized shall be registered in the
Register of Fiduciary. Thus, binding agreement guarantees the notarial deed form is an
essential prerequisite for the binding of moving objects were used as
loan collateral.Imposition
of Fiduciary done by using an instrument called denagan Fiduciary Deed,
which must meet the requirements in the form of Deed and registered
with the competent authority. With
this application is expected to be debtors, especially naughty, can no
longer mengibulin creditors or potential creditors with memfidusiakan
once again or even selling goods without the knowledge Fiduciary places
of origin at the office Pendaftaraan Fiduciary creditors under nauangan
Ministry of Justice and Human Rights of the Republic of Indonesia. Fiduciary certificate as proof that the recipient of the Fiduciary Fiduciary rights.Certificate
of fiduciary guarantee the creditor / beneficiary of fiduciary
necessarily have the right to immediate execution (parate execution), as
occurs in the lending and borrowing in the banking system. The certificate of the same legal force court decisions that already.
binding legal force. If the binding provisions laid down or the imposition of a moving
object guarantee referred to in Article 5 paragraph (1) and Article 11
(1) UUJF followed, then the receiving party has the right to precedence
fiduciary (preferent) upon fulfillment of payment of its receivables
from other creditors.Fiduciary
recipient preferences will have Rights, namely the right to take
repayment of its receivables on the results of the execution objects
into places Fiduciary collateral. Rights
acquired during the new preferences will be registered Fiduciary
Fiduciary Registration office and the rights issue are not clear due to
the bankruptcy or liquidation of the Giver Fiduciary. If the receivables transferred to another party, then Fiduciary guarantee the debt also transferred to the transferee Fiduciary.So
if for whatever reason, things Fiduciary is transferred into the hands
of another person, then the Fiduciary on the object is still valid and
there is no obligation and tanngung responsibility of Receiver Fiduciary
on fault (intent or negligence) on Giver Fiduciary, which arises
because the relationship konraktual or because of an unlawful act, with respect to the use and transfer of objects into objects such fiduciary.Rights precedence or preferent rights owned penengasan creditors in accordance with Article 27 paragraph (3) UUJF. This
article affirming that the right to precedence owned creditor does not
remove because of their bankruptcy or liquidation of the debtor / donor
fiduciary. In practice. Diverting fiduciary objects can be categorized evasion.The formula is called / by qualifying evasion. This formula does not make sense as making something dark or bright, such as the meaning of the word. Verduistering words into our language that translates literally with
embezzlement, for Dutch society broadly given meaning (figurlijk) and
not be interpreted as an actual sense of the word as make something
become bright or dark.On example is the transfer of rights to object by the grantor
fiduciary fiduciary without the knowledge and prior written consent of
the recipient fiduciary, based on Article 36 of Law Fiduciary, may be
subject to criminal and sentenced.From
the formulation of embezzlement, as mentioned above, if the detailed
consisting of the elements of objective includes actions have (zicht
toeigenen), a body (eenig goed), which partly or wholly owned by someone
else, who is in his power not because of crime, nand elements includes intentionally subjective embezzlement (opzettelijk), and embezzlement against the law (wederrechtelijk).Deeds has. Zicht
toeigenen have translated words, deem it as belonging, or there
mennguasai defeat in contravention of rights, or claimed as the
property. The Supreme Court in its decision dated 25-2-1958 No. 308
K / Kr / 1957 states that the words in Indonesian Zicht there has been
no official translation so that the words can be translated there with
words of taking or have. Membicarakana time of the theft in advance, has been discussed about the elements have on the crime.Understanding this has on embezzlement No difference with having to theft. The
difference is, is that in terms of having the theft is such a
subjective element, as the intent to have (the crime of the object). But the embezzlement, have the form of an objective element, the element's behavior or actions that are prohibited under fraud. If the theft is not required absolutely.
binding legal force. If the binding provisions laid down or the imposition of a moving
object guarantee referred to in Article 5 paragraph (1) and Article 11
(1) UUJF followed, then the receiving party has the right to precedence
fiduciary (preferent) upon fulfillment of payment of its receivables
from other creditors.Fiduciary
recipient preferences will have Rights, namely the right to take
repayment of its receivables on the results of the execution objects
into places Fiduciary collateral. Rights
acquired during the new preferences will be registered Fiduciary
Fiduciary Registration office and the rights issue are not clear due to
the bankruptcy or liquidation of the Giver Fiduciary. If the receivables transferred to another party, then Fiduciary guarantee the debt also transferred to the transferee Fiduciary.So
if for whatever reason, things Fiduciary is transferred into the hands
of another person, then the Fiduciary on the object is still valid and
there is no obligation and tanngung responsibility of Receiver Fiduciary
on fault (intent or negligence) on Giver Fiduciary, which arises
because the relationship konraktual or because of an unlawful act, with respect to the use and transfer of objects into objects such fiduciary.Rights precedence or rights owned preferent creditors in accordance with the assertion of Article 27 paragraph (3) UUJF. This
article affirming that the right to precedence owned creditor does not
remove because of their bankruptcy or liquidation of the debtor / donor
fiduciary. In practice. Diverting fiduciary objects can be categorized evasion.The formula is called / by qualifying evasion. This formula does not make sense as making something dark or bright, such as the meaning of the word. Verduistering words into our language that translates literally with
embezzlement, for Dutch society broadly given meaning (figurlijk) and
not be interpreted as an actual sense of the word as make something
become bright or dark.On example is the transfer of rights to object by the grantor
fiduciary fiduciary without the knowledge and prior written consent of
the recipient fiduciary, based on Article 36 of Law Fiduciary, may be
subject to criminal and sentenced.From
the formulation of embezzlement, as mentioned above, if the detailed
consisting of the elements of objective includes actions have (zicht
toeigenen), a body (eenig goed), which partly or wholly owned by someone
else, who is in his power not because of crime, nand elements includes intentionally subjective embezzlement (opzettelijk), and embezzlement against the law (wederrechtelijk).Deeds has. Zicht
toeigenen have translated words, deem it as belonging, or there
mennguasai defeat in contravention of rights, or claimed as the
property. The Supreme Court in its decision dated 25-2-1958 No. 308
K / Kr / 1957 states that the words in Indonesian Zicht there has been
no official translation so that the words can be translated there with
words of taking or have. Time to talk about the theft in advance, has been discussed about the elements have on the crime.Understanding this has on embezzlement No difference with having to theft. The
difference is, is that in terms of having the theft is such a
subjective element, as the intent to have (the crime of the object). But the embezzlement, have the form of an objective element, the element's behavior or actions that are prohibited under fraud. If the theft is not required absolutely no form.
of the element have it, because this has just addressed by the element of intent as a means only.But
on embezzlement, thinking about the form of an objective element,
namely the elements of behavior or actions that are prohibited under
fraud. If
the theft is not required absolutely no element has an wuhjud of that,
because this has just addressed by the element of intent as a means
only. But has on embezzlement, as an element of behavior, in the form of an
objective element, then it must have the last shape / form, which form
must be completed as a condition to be the completion of embezzlement.The forms of action have, for example, sell, exchange, grant, pawning and so forth. On
the theft, the elements of the intent to have already apparent from
their actions take, therefore before the crime was committed is not in
the object of his reign, before evasion. Therefore, the object of crime, before the embezzlement occurred has
been in power, then it becomes difficult to determine when it has a form
of fraud without their own deeds.Elements of the crime object (an object). Formation
of Article 362 explained that the object becomes the object of theft is
moving and tangible objects, which are in development as in the
subsequent practice, court decisions have interpreted a way as possible,
so it has deviated from its original sense. Such as gas and electric energy dapay also eventually become the object of theft. Unlike the electric energy objects also can eventually become the object of theft. Unlike the objects that become the object of fraud, can not be interpreted other than as objects move money and tangible. The act has to objects that exist within its remit sebagaiama which
has been described above, it is impossible to do the things that are not
tangible.Definition
of objects that are within its remit as the existence of a direct
relationship and very close to it, which as the indicator is that when
he was about to do something against it, he can do so directly without
having to perbutaan others first, is only against objects tangible and moving, and is not likely to occur in objects that are intangible and fixed objects.Is something improbable as menngelapkan home, darken and darken the electrical energy gas. It merely skimming Kaluapun letter home (land certificate), darken the gas tube. If it happens for example sell gas from the tube because they control the deposit, that this is not fraud, but theft. Because people with gas is not in control of the relationship. Master relationship is only against the tube.Only towards the tube he can perform any acts directly without going through other acts first. The other with its contents, to do with its contents, for example to
sell it, he can not do directly without doing any other act, namely to
tap tube umtuk eject / remove the gas.Partly or wholly owned by others. The
thing that has no owner, either from the beginning or have released
proprietary rights may not occur penggelapan.benda object belongs to a
legal entity, such as the property of the State is in the form of
objects that are not / not being owned by the people, is interpreted as
belonging to another person, in the sense of not petindak belong, and therefore can become the object of embezzlement and theft.Others
are referred to as the owner of the object which is the object of
embezzlement, it is not a requirement as it is the victim, or the
tetentu, but anyone as long.
not acting alone. Arrest
HR dated May 1, 1922 states clearly that to punish for embezzlement is
not required that the legally proven who the owner of the goods. Embezzlement evident enough when someone found a watch in the bathroom
railway station, took then raised his intention to sell it, forget it
sells.Objects within its remit was not because of crime. Here there are two elements, the first aberda in power, and the second is not because of crime. Subject elements are within its remit has been mentioned above. An object is within one's power when the man with the body there is a
relationship so closely, so that if he would do all kinds of force
against objects that he can immediately do it directly without first had
to do something else.For example, he can immediately sell deeds, gave it away, be
exchanged, and so forth, without he should do something else first (the
last act where an act anatara so that he can do directly).Breakfast. The existence of legal sanctions against Crime Diversion places FiduciaryImportant part of the criminal system is setting a sanction. Existence will provide direction and consideration of what sanctions
should be used in a criminal act to enforce the enactment of the norm on
the other hand, punishment itself is the most complex processes in the
criminal justice system because it involves many different people and
institutions.Each sentence has a certain social meaning because of a sanction depends on the power of the human perception of the sanctions. For example the negative sanction for instance on the implementation
of the death penalty, paasti would lead to a different perception.Before talking about the types of offenses known to the Criminal Law
in Indonesia, we should know in advance, which is what is actually meant
by the words of the criminal itself.According to Van Hamel, the meaning of a criminal or straft by positive law today is:Een bijzonder leed, tegen een van den oprtreder door ben staat
geandhaafd rechtsvoorscarift, opden grond van den enkelen
dieopertrading, van den staat als Wege der openbare handhaver, door met
met de rechtbedeeling belaste gezag uit te spreken.A special besifat suffering, yangf have been dropped by the competent
authority for criminal menajatuhkan on behalf of State in charge of law
and order is common for an offender, ie, solely because the person has
violated a rule of law upheld by the State harlus.According simons, criminal or strarf it is:Het leed, door de strafwet aan als gelvolg overtrading van d norm
verbonden data schuldige bij aan den rechterlijk vonnis wordt opgelegd.This means
A suffering by the criminal laws that have been associating with
pelaggaran against a norm with a judge's decision has been handed down
for a guilty man.Algra-Jansen has formulated a criminal or straf as:Het middle waarmee de overhedi (recthter) degene die een ontoelaatbare hamdelling pleegt roept terechwijst of tot order. Deze reactive van de overhead op Zinj handeling ontneemt de gestrafte
een deel van de bescheriming die hijz, als hij zou hebben geen gepleegd
delict, gentlet t.a.v zijn leven, vrijheid zijn, zijn vermogen.This means:Tools used by rulers (judges) to memeperingatkan those who have committed an act that can not be justified. The reaction of the authorities tersebuttelah revoke some of
Protection of that should be enjoyed by the convict on the lives,
liberty and property wealth, that if he had not committed a crime.This means that the criminal is not a destination and can not possibly have a purpose. It
needs to be explained, so that in Indonesia should not be carried away
by the current chaotic way of thinking of the author in the Netherlands,
because they often have to call the destination of pempidanakan by
saying the purpose of the criminal, to some authors in the ground water
without realizing chaotic thinking of the the Dutch writer, has translated the words literally doel der straf is actually the purpose of criminal prosecution.Based
on the conception of criminal law, the execution of fiduciary object
under the hand into the criminal act of Article 368 of the Criminal Code
if kresitor do coercion and the threat of expropriation. This article states:1.
Whoever with intent to mengutungkan yourself or others unlawfully,
forcing a by violence or threat of violence to provide goods something,
which tseluruhnya or partially belongs to that person or another person,
or in order to create or eliminate debt receivable, threatened because pemerasaan lam with imprisonment of nine months.2. The provisions of Article 365 paragraph second, third, and fourth applies to this kejahataan.This situation occurs when a creditor in the execution of coercing and to take goods to partly or wholly owned by others. Although it is well known that partially or wholly owned by others. Although well known that most of the goods are owned by creditors who
want to execute but is not registered in the fiduciary office.This
situation can occur if a creditor in the execution of coercing and take
the goods unilaterally, but known in these goods partly or wholly owned
by others. Although well known in the goods part of the goods are owned by
creditors who want to execute but is not registered in the fiduciary
dikantaor.Even
the imposition of any other section can occur given that everywhere
execution is not easy, for it will take legal security and support law
enforcement agencies legally. This is the urgency of legal protection balanced between creditors and debtors.If the debtor objects dispose of fiduciary conducted under the hands
of the other party can not be snared by Law 42 of 1999 on Fiduciary,
because it is legitimate or legal fiduciary fiduciary agreements made.
Provided that the other section can occur given that everywhere execution is not easy, for it will take legal security and support law enforcement agencies legally. This is the urgency of legal protection balanced between creditors and debtors.Even if the debtor objects dispose of fiduciary conducted under the hands of the other party can not be snared by Law 42 of 1999 on Fiduciary, because they are illegitimate fiduciary or fiduciary legal agreement made.Fiduciary Law only regulates criminal Article 35Any person who intentionally memalsulkan, modify, eliminate or in any way provide information in a confusing manner, that if it was discovered by one of the parties does not give birth to the agreement Fiduciary, shall be imprisoned for a minimum of 1 (one) year and 5 ( five) years and a fine of at least Rp. 10.000.000, - (ten million rupiah) and Rp. 1000.000, - (one hundred million rupiah).Giver Fiduciary menaglihkan, pawning, or rent object which is the object Fiduciary referred to in Article 23 paragraph (2) is carried out without the prior written consent daripenerima fiduciary, convicted with criminal prision than 2 (two) years and a maximum of Rp. 50.000.000, - (fifty million rupiah).
Provided that the other section can occur given that everywhere execution is not easy, for it will take legal security and support law enforcement agencies legally. This is the urgency of legal protection balanced between creditors and debtors.Even if the debtor objects dispose of fiduciary conducted under the hands of the other party can not be snared by Law 42 of 1999 on Fiduciary, because they are illegitimate fiduciary or fiduciary legal agreement made.Fiduciary Law only regulates criminal Article 35Any person who intentionally memalsulkan, modify, eliminate or in any way provide information in a confusing manner, that if it was discovered by one of the parties does not give birth to the agreement Fiduciary, shall be imprisoned for a minimum of 1 (one) year and 5 ( five) years and a fine of at least Rp. 10.000.000, - (ten million rupiah) and Rp. 1000.000, - (one hundred million rupiah).Giver Fiduciary menaglihkan, pawning, or rent object which is the object Fiduciary referred to in Article 23 paragraph (2) is carried out without the prior written consent daripenerima fiduciary, convicted with criminal prision than 2 (two) years and a maximum of Rp. 50.000.000, - (fifty million rupiah).
Based on Blitar District Court 247 / Pid. P / 2009 / PN. Blt, dated 14 February 2010 convict the perpetrators of fiduciary transfer of objects without permission amar full as follows:1. Menyatahkan defendant: Mahmudi bin Sumalih, has been proven legally
and meyakimkan guilty of "dispose The Object Fiduciary Carried without
the prior written consent of the Receiver fiduciary".2.
Punish Defendant therefore the Criminal Prison for 8 (eight) months and
a fine of Rp.50.000.000, - (fifty million rupiah), and if the defendant
did not pay the fine, it is replaced with Criminal Confinement lieu of
fines for 3 (three months:3. Set the evidence in the form:-
1 (one) unit of Motorcycles Honda NF 100 TD (Revo), No. Police: AG 4427
KT, blue, 2008, No. Ramgka: MHIHB62188K272070, Number Machine: HB62E
1,268,521, in the name: Mahmudi, Address: Hamlet / Village soso RT.3 / 2 Gandusar i Blitar, the following vehicle registration (Vehicle registration number) has been returned to PT. Sasana Artha Finance (SAF)4. To charge the defendant to pay court costs Rp. 5000, - (five thousand rupiah).Fiduciary guarantee certificate made assurances that no fiduciary legal consequences complex and risky. Creditors can do right execution for being unilateral and can cause kesewenagan-wenagan from creditors. Can also karenamengingat pembiyaan goods fiduciary objects are usually not full in accordance with the value of the goods. Alternatively, the debtor had obligations as part of the agreement, so
it can be said that the above mentioned goods belonging to the debtor
stands partly right and partly-owned creditors.The
definition of imprisonment is a punishment in the form of restrictions
on freedom of movement of a convict, which is done by closing the person
in an institution permasyrakatan, by requiring people to obey all the
disciplinary rules applicable within the institution permasyrakatan,
which is associated with an action order for them who have violated these rules.Imprisonment
has been known since the sixteenth century or the seventeenth century,
but in contrast to imprisonment today, criminal penajara at that time
was done by closing the prisoners dimenara-tower, dipuri-puri, dibenteng
fort and others, especially those who had been sentenced to death, but then also those who had
been sentenced in the form of deprivation of liberty, whether
temporarily or that for a lifetime.Imprisonment as can be encountered today just started to grow since
dihapuskanya death penalty or to imprisonment in many countries, but the
treatment of the prisoners in the prison houses often are inhumane
nature.Many business people have done so inhumane treatment against the
prisoners immediately be discontinued and replaced with measures that
are more lenient.Since
the seventeenth century, everywhere people started to build so-called
tuchtauizen or enforcement agencies, and the so-called Werkplaatsen or
institutions work, first in Amsterdam and then in Hanzesteden,
everything in the country.
The Netherlands, which is then compiled with institutions similar in nearly all of Europe, among others, the so-called verbeterhuis or agencies to improve children of men in Rome in 1703 and the so-called tuchthuis or institution controlling in Gent in 1775.Since then the people requires that imprisonment has tujuanya of its own, namely Remove only with the intent to shut down and mebuat deterrent criminals but also improve the prisoners, mainly by requiring them to obey the rules of the discipline and target them systematically to perform this type of work.With a goal like that is what is called tuchthuizen, rasphuizen and apinhuizen in Amsterdam and Hanzesteden it has been built, namely with the intention that the beggars, the drunkards, prostitutes and teenagers who have been under the influence of criminals can familiarize themselves with a variety of work which is useful for them, if they will eventually be returned into the midst of normal community life.
Tuchthuis literally means house demolition. The meaning of the above is the home tuchtuis prison for running a criminal egregious, was rasphuis is home to the convict prison diamana given lessons on how to spin yarn.Agencies to improve children of men in Rome and the so-called tucthtuis in Gent, by deliberately built with the aim of separating the prisoners at night in his cell each. Similarly, the habit to set the prisoners separately in accordance with the weight-ringanya criminal who should they run from house to house prison anywhere in the world, we in Indonesia also follow the habit, which is to put those sentenced to imprisonment separately with their sentenced.Legislation governing penitentiary institutions in Indonesia it is the Ordinance of December 10, 1917, Statute Book Year 1617 Number 708, which is also known as Gestichtereglement.Until today has not succeeded in forming a legislation that is new, that in accordance with gagsan to rename the jail house with the name of penitentiary, up to what is stipulated in Gestichtenreglement was surely no longer in line with the objective to make the institution-penitentiary it as institutions to promote the return of the convicts, who are running their criminal therein.According to the provisions contained in Article 4 Gestichtenreglement, called gevangenen or those detainees are:a. The people who run imprisonment or imprisonment,b. People who are subject to temporary detention,c. People who are held hostage (gegijzelden), andd. Other people who are not mejalankan imprisonment or imprisonment, but that is valid under the law inserted into permasyrakatan institutions.Article 30, paragraph 1 (a) Gestichtenreglenent prohibits any Head of Institute of Correctional accept to be closed within the penitentiary he led, if not accompanied by a judge's decision, a warrant or a determination that has been issued by the competent authority.
What if the convicts are intended in a Correctional Institution is a woman who is still nursing her child?If
the convicted person is willing, then he can take his son suckling into
the penitentiary, provided that as soon as her son no longer need to
breastfed by his mother or not later than two years after the convict is
inserted into the prison, the child should be taken out of the
penitentiary to nurtured by his father or by the child's family.Provisions as defined above, also apply to children born in the penitentiary. Someone
who received in a penitentiary to run the prison, absolutely not
allowed to bring any item too, were other prisoners, including those who
are to imprisonment with siizin Director of the Institute of
Correctional could bring stuff that is on them to where they will be placed in a penitentiary.When
the legal process is ongoing and during the debtor has not delivered
the goods to the Police or the company, the debtor is concerned will
menjalanin legal proceedings with demands have committed the crime of
diversion object fiduciary, and all kosekwensi of this process the
company will not get back the goods as assurance of debtors. But
usually after the offense is delegated to the Police, the debtor will
be able to return the goods / vehicles to the Company. Because in general, debtors do not want to become police custody.Actual
reporting actions against criminal fiduciary transfer of objects made
by the debtor to the police is one of the last resort, given the debtors
can not submit or prove the goods have been included to the hire
purchase agreement which is the collateral. And the status of the goods are actually still at the mercy of creditors.C. Efforts Can Be Done In Combating Crime Diversion places FiduciaryThe
principle of agreement "pacta sun servanda" which states that the
agreement made by the parties besepakat, will become law for both,
remained in force and became the main principle in contract law. But the treaty provides fiduciary guarantee under the hand can not be executed. Process execution must be carried out dengancara State filed a lawsuit
to court through the normal legal process events up to the fall of the
court decision.With demekian criminal law policy relating to enforcement proceedings (criminal) law as a whole. Therefore,
criminal law policy aimed at the concretization / koperasionalisasi /
functionalization of criminal law material (substantial), formal
criminal law (the law of criminal procedure) and criminal law
enforcement. Furthermore, criminal law policy can be associated with actions.1. How is the government's efforts to tackle crime with criminal law;2. How do we formulate criminal law to conform to the conditions of society.
3. How is the government policy to regulate society by criminal law;4. How to use the criminal law to regulate the society in order to achieve greater goals.This is the choice that the procedural law of a formal order to maintain fairness and enforcement of the material law contains. This process will almost certainly take a long time, if the parties use all legal remedies available. Costs that must be incurred was not small. Of course, this is a selection dilemma.With
demekian, assuming the policy of crime prevention (political criminals)
is done by using a means of "penal" (criminal law), then the policy of
criminal law (penal policy), especially at the stage of policy judicial /
applicable (criminal law enforcement in concreto) should pay attention
and lead to the achievement of the objectives of social policy, in the form of "social welfare" and "social defense".In criminal law policy, provision for menaggulangi crime is one effort in addition to other efforts. Handling of crime through the criminal justice system is a fraction of the total sum penaganan crime.Efforts
through the criminal justice system is known by the term "penal effort"
is to use criminal laws, in addition to efforts to "non-penal" which
ditujunjukan emphasis on the causes of crime. Penaggulangan total sum of this crime is a political criminal. Criminal policy or political criminal is a rational attempt to menaggulangi crime.Politics is part of criminal law enforcement policy Darki broad sense
(law Enforcement policy) that is part of a social policy (social policy)
the efforts of the community to improve kesejatahteraan citizens.Pretext of chasing big margin should also consider fairness to all parties. People who generally menajdi client must also be more critical and careful in doing transactions. As for the Government, certainty, justice and the rule of law is important.Nowadays
a lot of esksekusi carried out by the motor vehicle to the consumer
financing Credit rating motorbike / car menuggak angsuranya, but their
actions are illegal because they do not have the right esksekutorial
result of not registered fiduciary agreement between the consumer
finance company. It
has long been going on until now without any action taken on the part
of the government while their customers mostly do not know whether the
fiduciary agreement tandatanggani they are not registered. Supposedly the illegal execution sanctioned by law enforcers because it is set in the Act No. 42 of 1999 on Fiduciary.During
the law enforcement system in this country is not working properly,
inconsistent enforcement of law enforcement officials who have the
power, the edges are the people who are victims.
increased demand billing services so that the debt collector mucullah either working alone or organized up to the tragedy of death.
The solution needs to be done by the government and the DPR is to make an Act to regulate billing services, validating billing services as one of the professions that can be recognized by the community wide, and set how the community or the person can perform this service with certified through training specific so that this community has expertise as a power or profession professional billing services which are not contrary to the laws of Indonesia.
The solution needs to be done by the government and the DPR is to make an Act to regulate billing services, validating billing services as one of the professions that can be recognized by the community wide, and set how the community or the person can perform this service with certified through training specific so that this community has expertise as a power or profession professional billing services which are not contrary to the laws of Indonesia.
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