Legal Literacy - Learn about Actio Pauliana, a legal remedy for creditors who are harmed by debtors. Discover: The Definition of Actio Pauliana, Conditions for filing Actio Pauliana, Filing period, Proof of Actio Pauliana, Legal consequences of Actio Pauliana, and Examples of Actio Pauliana cases.
Actio Pauliana and Its Application based on Bankruptcy
Actio Pauliana is a form of legal protection for creditors against legal actions such as affiliations, grants, or payments of debts made by debtors with third parties where creditors feel disadvantaged by these legal actions. Actio Pauliana is regulated in Article 41 and Article 42 of the Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations (PKPU).
In addition, the provisions of Actio Pauliana are also regulated in Article 1341 of the Civil Code which states that every creditor has the right to file for the cancellation of all actions of the debtor that are not required to be carried out, and which are detrimental to the creditor, provided that it can be proven that when the action was taken, both the debtor and the person for whom the debtor acted knew that the action would have detrimental consequences for the creditor. Examples of actions taken by the Debtor include selling or granting his assets, whether the action is reciprocal (such as buying and selling) or unilateral (such as grants) and taking actions that may increase the burden of the debtor's obligations.
Creditors in filing an Action Pauliana must meet the following conditions: it is carried out for the benefit of the bankruptcy, the debtor who has been declared bankrupt has committed a legal act before being declared bankrupt that harms the creditors, and the legal act is not required by agreement or law.
In addition, according to expert Hadi Shubhan, the elements that must be fulfilled in submitting an Actio Pauliana are: First, the legal act is an act that is detrimental to creditors and is carried out within 1 year before the bankruptcy decision. Second, the legal act is an act that is not obligatory/necessary for the debtor to do, so that the act is detrimental to the creditor. Third, the legal act is an agreement in which the debtor's obligations far exceed the obligations of other parties in the agreement, so that this is detrimental to the creditor. Fourth, a legal act that is detrimental to creditors for payment or provision of guarantees for debts that have not yet fallen due and/or have not yet or cannot be collected. Fifth, a legal act that is detrimental to creditors which is carried out against affiliated parties.
Furthermore, Actio Pauliana can only be filed by a Curator who has the authority based on law to file it, as long as the curator has sufficient evidence of the debtor's actions that are detrimental to the creditor. The time period for submitting an Actio Pauliana based on bankruptcy and PKPU laws is ideally 1 year before the bankruptcy decision, this is intended to provide legal certainty for the curator in submitting an Actio Pauliana Lawsuit to the Commercial Court.
Proof of Actio Pauliana, if it is still within 1 year before the pronouncement of the bankruptcy decision, then the bankrupt debtor is obliged to prove that the legal act is valid and does not harm the interests of the creditors, or the debtor is deemed or should have known that the act is detrimental to the creditor. However, if the 1-year filing period has passed, the curator is obliged to prove that the legal act carried out by the debtor with a third party has harmed the interests of the creditors.
Legal Consequences of Actio Pauliana in Bankruptcy Cases
Actio Pauliana is closely related to bankruptcy law because it can have an impact on the process of settling the bankrupt's assets of a debtor who is undergoing bankruptcy proceedings. In the event that the curator has filed an Actio Pauliana Lawsuit and the lawsuit is granted, then as a legal consequence, the debtor's legal act being sued is canceled. The legal act that is canceled is generally an act involving a third party.
The legal consequence of the cancellation of the debtor's actions above, because it has harmed the creditor, creates an obligation for the parties in the Actio Pauliana Lawsuit to return the assets that have been obtained from the debtor to the curator because the assets are considered bankrupt assets.
In addition, the legal protection for third parties acting in good faith and involved in the Actio Pauliana Lawsuit based on the provisions of Article 49 paragraph (4) of Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations (PKPU) states in essence that for goods that have been received by the Debtor or the price of goods that have been paid to the Debtor by a Third Party, the Curator of the bankrupt debtor subject to Actio Pauliana has an obligation to return the goods that have been received by the Debtor or the price of goods that have been paid by the third party to the Debtor to the extent that the bankruptcy estate is benefited.
According to Munir Fuady in his book, there are requirements for curators in returning the price of goods to third parties in Actio Pauliana, including: if and to the extent that the price of the goods has benefited the bankruptcy estate and if the price of the goods is available. Thus, if these conditions are met, the curator based on applicable law is obliged to return the price of the goods as a right that should be obtained by the third party involved in Actio Pauliana due to the cancellation of the transaction that has occurred.
Actio Pauliana Cases in Bankruptcy
The following is an example of an Actio Pauliana Lawsuit case carried out by the Curator to the Debtor in bankruptcy, namely decision Number 659 K/Pdt.Sus-Pailit/2017. The filing of the Actio Pauliana Lawsuit was based on the fact that Debtor PT AJB is a Company that has been declared bankrupt based on the decision of the panel of judges of the Commercial Court that examined the case a quo. Then Debtor PT AJB committed an act of bad faith by transferring one of the assets/land and building assets of PT AJB which are included in the bankruptcy estate by selling it to a third party 2 days before the bankruptcy decision.
Debtor PT AJB should have known that the land and building assets were part of the bankruptcy estate, so Debtor PT AJB should have handed them over to the Creditors in the context of settling the bankruptcy of PT AJB. The unlawful act committed by Debtor PT AJB has in fact harmed the creditors of PT AJB.
The Creditors filed an Actio Pauliana Lawsuit with the petitum of the Lawsuit being to request that the sale and purchase agreement for assets or assets belonging to the bankruptcy estate be null and void and to return the money from the sale of the land and building to a third party and to declare the Creditors of PT AJB as the Plaintiff is the legal party and entitled to the land and building assets.
The Panel of Judges' decision at the first level granted the Creditors of PT AJB's lawsuit, declared the legal action of Debtor PT AJB in transferring the bankrupt estate assets of land and buildings caused losses to the creditors, declared the deed of sale and purchase of land and buildings carried out by Debtor PT AJB with a third party null and void, handed over the assets and certificates to the creditors as the Curator Team of PT AJB, ordered Debtor PT AJB to return the payment money from the sale and purchase of the land and building assets to the third party, and declared the creditors as the legal parties to the land and buildings of the bankrupt estate.
Comments (0)
Write a comment