Abstract Under Article 29(1) of Law No. 42 of 1999 on Fiduciary Guarantees (UUJF), the execution of fiduciary collateral objects may only proceed through an executorial title. Creditors, as holders of fiduciary collateral certificates, possess the right to directly execute the collateral if the debtor defaults, as stipulated in Article 15 paragraphs 2 and 3 of the UUJF. This provision formed the basis for a debtor’s petition to the Constitutional Court, resulting in Decision No. 18/PUU-XVII/2019, which favored the debtor by mandating that creditors must execute collateral through the court rather than directly. Subsequently, creditors appealed, leading to Decision No. 2/PUU-XIX/2021, which allowed execution through the District Court as an alternative. This research explores the economic analysis of these legal changes, addressing two primary questions: (1) How does economic analysis of law apply to the execution of fiduciary collateral post-Constitutional Court rulings? (2) Can fiduciary collateral execution be effectively carried out under the Constitutional Court’s decisions? Utilizing Richard A. Posner’s economic analysis of law framework, this empirical normative study employs qualitative methods to assess statutory and case law. The findings indicate that Decision No. 2/PUU-XIX/2021 aligns more closely with economic efficiency compared to Decision No. 18/PUU-XVII/2019. However, the inconsistency between these rulings increases costs and legal uncertainty, adversely affecting the broader economy by complicating credit facilities for businesses.
Asshiddiqie, Development and Consolidation of State Institutions After Reform, Jakarta: Secretariat General and Clerk of the Constitutional Court of the Republic of Indonesia, 2006.
Antoni Putra, "Final and Binding Nature of Constitutional Court Decisions in Testing Laws," Judicial Journal, Vol. 14, No. 3, December 2021.
D. Soegianto, D. S. R S, and M. Junaidi, "Execution of Fiduciary Guarantees in the Study of Law Number 42 of 1999 concerning Fiduciary Guarantees," J. Ius Const., 2019, doi: 10.26623/jic.v4i2.1658.
Fachreza, S. Sunarmi, M. Ablisar, and M. Mulyadi, "Criminal Liability of Bank Employees Related to the Bank's Prudential Principle in the Decision of Pn. Lubuk Pakam No. 964/PID. B/2015/PN. LBP., AUGUST 19, 2015," Law J., 2022, doi: 10.46576/lj.v2i2.1815.
H. Kuswanto, "The Takeover of the Right to Guarantee (Execution) of Fiduciary and Rahn Tasjily Guarantees from the Perspective of Positive Law and Islamic Law," Media Keadilan J. Ilmu Huk., 2019, doi: 10.31764/jmk.v10i2.2015.
Ian McLeod, "The Economic Analysis of Law," in Darminto Hartono, Economic Analysis of Law atas Putusan PKPU Tetap, University of Indonesia, Faculty of Law, Lembaga Studi Hukum dan Ekonomi, 2009, p. 164.
I. Saputra, "The Legal Force of Fiduciary Guarantees After the Constitutional Court Decision Number 18 /PUU-XVII-2019 concerning Fiduciary Guarantees," J. Ilm. Nas. Mhs. Huk., 2021.
M. Agus Maulidi, "Questioning the Executory Power of the Final and Binding Constitutional Court," Journal of Constitution, Vol. 16, No. 2, June 2019.
M. F. Rozi and L. Jamilah, "Execution of Fiduciary Guarantee Objects After the Constitutional Court Decision Number 18/PUU-XVII/2019 for the Realization of Justice," Bandung Conf. Ser. Law Stud., 2022, doi: 10.29313/bcsls.v2i1.765.
M. Yahya Harahap, Scope of Civil Execution Problems, Second Edition, Fifth Edition, Jakarta: Sinar Grafika, 2010.
Ni'matul Huda, The Executory Power of the Constitutional Court's Decision, Yogyakarta: FH UII Press, 2018.
Richard A. Posner, Economic Analysis of Law, Fourth Edition, London: Little Brown and Company Boston Toronto, 1992.
Retno Wulan Sutantio & Iskandar Oeripkartawinata, Civil Procedure Law in Theory and Practice, Bandung: Alumni, 1979.
S. Syafrida and R. Hartati, "Execution of Fiduciary Guarantee After the Constitutional Court Decision Number 18/PUU/XVII/2019," ADIL J. Huk., 2020, doi: 10.33476/ajl.v11i1.1447.
V. Maku, A. T. Anggraini, and E. Widjajati, "Legal Implementation of the Constitutional Court Decision Number 18/PUU-XVII/2019 on the Fiduciary Guarantee Execution Process," Hermeneut. J. Science Huk., 2020, doi: 10.33603/hermeneutics.v4i2.4273.
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