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 to third parties where creditors feel aggrieved by these legal actions. Actio Pauliana is regulated in Article 41 and Article 42 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 cancellation of all debtor's actions 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 or 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 doing something that can 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 estate, the debtor who has been declared bankrupt has committed a legal act before being declared bankrupt that is detrimental to 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 filing an Action Pauliana are: First, the legal act is an act that is detrimental to the creditor 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 carry out 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, which is detrimental to the creditor. Fourth, a legal act that is detrimental to the creditor 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 the creditor which is carried out against affiliated parties.

Furthermore, Actio Pauliana can only be filed by the 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 filing Actio Pauliana based on bankruptcy law and PKPU is ideally 1 year before the bankruptcy decision, this is intended to provide legal certainty for the curator in filing 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, 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 harmed the creditor. However, if the 1-year filing period has passed, the curator is obliged to prove that the legal act committed by the debtor with a third party has harmed the interests of the creditors.

Actio Pauliana is closely related to bankruptcy law because it can have an impact on the process of settling the bankrupt debtor's assets who is undergoing the bankruptcy process. 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 as bankruptcy assets.

In addition, legal protection for third parties who act in good faith and are 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 has been paid by the third party to the Debtor as far as the bankruptcy estate is benefited.

According to Munir Fuady in his book, he explains that there are requirements for the curator to return the price of goods to third parties in Actio Pauliana, there are 2 requirements 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 a third party involved in Actio Pauliana due to the cancellation of the transaction that has occurred.

Actio Pauliana Case in Bankruptcy

The following is one example of an Actio Pauliana Lawsuit filed by the Curator against 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 took bad faith actions by transferring one of the assets/land and building assets of PT AJB which are included in the bankruptcy estate by carrying out a sale and purchase to a third party 2 days before the bankruptcy decision.

Debtor PT AJB should have known that the land and building assets were bankruptcy estate assets 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 actually made 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 return the money from the sale of the land and building to a third party and state that the Creditor of PT AJB as the Plaintiff is the legal party and entitled to the land and building assets.

The decision of the Panel of Judges at the first level was to grant the Lawsuit of the Creditors of PT AJB, stating that the legal act of Debtor PT AJB transferring the land and building assets of the bankruptcy estate resulted in losses for the creditors, stating that the deed of sale and purchase of land and buildings carried out by Debtor PT AJB with a third party was null and void, handing over the assets and certificates to the creditors as the PT AJB Curator Team, ordering Debtor PT AJB to return the money from the sale of the land and building assets to a third party and stating that the creditors are the legal parties to the land and buildings of the bankruptcy estate.