Faculty of Law Lecturer Emphasizes Deconstruction of Bankruptcy Proving

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Illustration by Feri Fenoria

UNAIR NEWS – Bankruptcy experienced by any business entity sometimes becomes a problem that is difficult to solve. A system that proves a business entity bankrupt needs to be reviewed.

Lecturer of Faculty of Law (FH) Universitas Airlangga, Dr. M. Hadi Subhan, SH., MH., CN. conducted research on deconstruction of evidence system in bankruptcy. Hadi revealed that Law Number 37 of 2004 contained two conditions for bankruptcy evidence.

First, it must have two or more creditors. Second, is one debt is unpaid and matured and can be billed. However, the ease of bankruptcy conditions is actually complicated by the existence of simple evidence requirement.

“Explanation of norms about the meaning of simple evidence is very inadequate and can even be deemed vague (vague norm),” he said.

According to him, the vagueness of norm in bankruptcy cases can lead to legal uncertainty and can even be misused. The legal uncertainty will only make it difficult to file for bankruptcy.

In his research, Hadi proved the procedural law for bankruptcy applications in commercial courts using the legis ratio used because of the extraordinary legal consequences for debtors with their bankruptcy status. The bankruptcy resulted in the loss of authority to all assets, even though legal appeal and legal review were still available.

Nevertheless, the Bankruptcy Law does not explain what is meant by these simple evidence. Moreover, it also does not provide limitations regarding the simple evidence which results in vague norm of the simple evidence.

“Debt that has not been repaid in full and can be billed as well as the presence of at least two creditors is one of the obvious ways of proving it,” he said.

Hadi also revealed that simple evidence often inhibits bankruptcy requests because judges often reject bankruptcy applications on the grounds that the evidence is not simple.

Simple evidence makes bankruptcy applications not simple because it will limit the bankruptcy request that is granted as a condition for bankruptcy is not easy.

Hadi concluded that a change in the evidentiary requirement is needed. For this reason, he emphasized the deconstruction of the simple evidence as a requirement in bankruptcy requests. Ordinary proof in bankruptcy and PKPU is another way that is able to facilitate bankruptcy proving of a business entity.

Author: Aditya Novrian 

Editor: Nuri Hermawan


M. Hadi Shubhan, Indonesian Law Review, Universitas Indonesia, Volume 9 Number 2, May – August 2019 ~ INDONESIA Law Review.

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