Penarikan Paksa Objek Jaminan oleh Perusahaan Pembiayaan: Rekonstruksi Batas antara Eksekusi Jaminan Fidusia dan Pertanggungjawaban Pidana

Forcible Repossession of Collateral by Financing Companies: Reconstructing the Boundary between Fiduciary Security Execution and Criminal Liability

Abstract

This study aims to examine the legal boundaries of financing companies’ authority to enforce fiduciary collateral and to formulate juridical parameters for distinguishing lawful enforcement from conduct that may give rise to criminal liability. This study employs normative legal research using statutory, conceptual, case, and analytical approaches. Legal materials are analyzed prescriptively to formulate an appropriate legal construction concerning the relationship between default, fiduciary collateral enforcement, and criminal liability. The findings demonstrate that the right of enforcement does not constitute an unrestricted right to take or seize fiduciary collateral. The legality of enforcement is determined by the existence of a legal basis, an established and legally accountable default, compliance with the applicable enforcement procedures, and the manner in which possession of the collateral is obtained. This study proposes a three-layer legal assessment model, consisting of: first, an assessment of the legal basis for enforcement; second, an assessment of procedural compliance; and third, an assessment of the method used to obtain possession of the collateral. Where the collateral is obtained through violence, threats, deception, or unlawful possession, such conduct must be independently examined under the relevant criminal provisions. Accordingly, payment arrears cannot serve as the sole basis for legitimizing the forced withdrawal of fiduciary collateral. This reconstruction emphasizes that financing companies have the right to obtain repayment through lawful enforcement mechanisms, but do not possess an unrestricted right to seize collateral or employ coercive measures beyond the limits prescribed by law.