PFORE WORDS
Thankful to Allah SWT for
the mercy, divine direction, and guidance until this paper is finished.
Although we could realized this paper is far away from the excelence.
At
this chance I’d like to thank:
1.
Irmawati, S.Pd., M.Pd. as a responsible
lecturer of this subject and give us lesson patiently.
2. Friends
who motivating for finishing this paper.
In
this paper composing, the writer realize that we have shortage and weakness.
Those are our edge as a human being.
Therefore
writer hoping critic and suggest from you all especially from the lecturer who
teach us for make this paper better.
Hopefully
this paper is useful and helping in studying in our future.
Makassar, May 2013
Composer
CONTENTS
FORE WORDS ................................................................................................. 1
CONTENTS ...................................................................................................... 2
CHAPTER I INTRODUCTION
1.1
Background ................................................................................ 4
1.2
Problem Conclusion .................................................................... 5
1.3
Writing orientation ...................................................................... 5
CHAPTER II RESEARCH
2.1
Literature Observation ................................................................ 6
2.1.1
Bankrupt and Bankruptcy ............................................... 10
2.1.2
Bankruptcy basic law ...................................................... 13
2.1.3
Bankruptcy association orientation ................................. 14
2.1.4
Bankruptcy Conditiont ................................................... 14
2.1.5
Consequence of bankrupt ................................................ 15
2.1.6
Basic of bankrupt ............................................................ 16
2.2
Problem Analize .......................................................................... 18
2.2.1
Bankruptcy cause of PT Arpeni Pratama ........................ 18
2.2.2
Bankruptcy reason request threated too early .............. 19
2.2.3
Procedur when Korea Securities want to give bankruptcy 21
CHAPTER III CLOSING
3.1
Conclusion .................................................................................. 26
3.2
Suggestion .................................................................................. 28
BIBLIOGRAPHY ............................................................................................ 29
CHAPTER I
INTRODUCTION
1.1
Background
Problem
Background
problems bancruptcy are always good long term cause far the debitor, creditor
even company stake holder especially for the company employee because
suspension, however will bring bad affection for the employee and their family.
Complexely, bankcruptcy will affect bad thing for country economica. Meanwhile
many companies always facing the threat of bankcruptcy request in trade course
because of hard to pay the company credit for the creditor. This is interesting
to be talked.
Bankcruptcy
law is one of subject to be studied, researched, and re-investigasted by
researcher and law business. This situation begun when monetary crisis in
Indonesia in middle of July 1997 that caused many companies had bankcruptcy.
Bankcruptcy law is already ancient and cannot fullfil the actor of business
needs who wants the bankcruptcy process could grow fastly transparent,
effective, fair, and could guarantee the law absolute.
In
order to fullfil the book nees of study about bankcruptcy, the writer prepared
in purpose to make it a hand book for the students who facing the bankcruptcy problems.
This assignment in order to be a fore words books that’s contented basic of
bankcruptcy that could be make hand books beside others. The writers realize
that this assignment has many weaknes but would be perfecting later.
1.2
Problem
Conclusion
From
the text above, the writer could conclucle problem that would be investigation,
they are:
1.
What caused PT Arpeni Pratama bankcruptcy
?
2.
Why bankcruptcy application regarded too
early ?
3.
What was the procedur that Korea
Securities when submitting bankcruptcy ?
1.3
Writing
Orientation
Orientation
that would be shot when this paper is done are:
1.
To know what caused PT Arpeni Pratama
bankcruptcy.
2.
To know what was the reason bankcruptcy submission
too early.
3.
To know what was the procedur that Korea
Securities when submitting bankcruptcy.
CHAPTER II
RESEARCH
2.1
Literature
Observation
2.1.1 Defenition of bankruptcy
Backruptcy
is the familiar word in business life. In etimology, the
word bankruptcy is derived from Italian, banca rotta, meaning "broken bench”, which may stem from a
custom of breaking a moneychanger's bench or counter to signify his insolvency,
or which may be only a figure of speech. In terminology, there are many
definition about bankruptcy:
1.
En.wikipedia.org
A legal status of a person or other entity that
cannot repay the debts it owes to creditors. In most
jurisdictions, bankruptcy is imposed by a court order, often
initiated by the debtor.
2.
Www.businessdictionary.com
Legal procedure for
liquidating a business (or property owned by an individual) which cannot
fully pay its debts out of its current assets. Bankruptcy can
be brought upon itself by an insolvent debtor
(called 'voluntary bankruptcy') or it can be
forced on court orders issued on creditors' petition
(called 'involuntary bankruptcy'). Two major objectives of a
bankruptcy are:
(1) fair settlement of the
legal claims of the creditors
through an equitable distribution of debtor's assets,
(2) to
provide the debtor an opportunity for fresh start. Banckruptcy amounts to a
business-failure, but voluntary winding up does not. See also insolvency.
3.
Www.teachmefinance.com
The legal process in which a person or firm declares
inability to pay debts. Any available assets are liquidated and the proceeds
are distributed to creditors.
2.1.2
History of bankruptcy
In business life, bankruptcy has an
history. In Ancient Greece, bankruptcy did not exist. If a man
owed and he could not pay, he and his wife, children or servants were forced into
"debt slavery", until the creditor recouped
losses through their physical labour. Many city-states in ancient Greece limited debt slavery to
a period of five years; debt slaves had protection of life and limb, which
regular slaves did not enjoy. However, servants of the debtor could be retained
beyond that deadline by the creditor and were often
forced to serve their new lord for a lifetime, usually under significantly
harsher conditions.
In the Torah, or Old Testament, every seventh year is decreed by Mosaic Law as a Sabbatical
year wherein the release of all
debts that are owed by members of the community (but not
"foreigners") is mandated. The seventh Sabbatical year, or
forty-ninth year, is then followed by another Sabbatical year known as
the Year of Jubilee wherein the release of all
debts is mandated, for fellow community members and foreigners alike, and the
release of all debt-slaves is also mandated. The Year of Jubilee is announced
in advance on the Day of Atonement, or the tenth day of the seventh Biblical month, in the forty-ninth year by the blowing of trumpets
throughout the land of Israel.
In Islamic teaching, according to the Qur'an, an insolvent person was deemed to be allowed time to be
able to pay out his debt. This is recorded in the Qur'an's second chapter (Sura Al-Baqarah), Verse 280, which notes: "And if someone is in
hardship, then let there be postponement until a time of ease. But if you give
from your right as charity, then it is better for you, if you only knew."
The Statute of Bankrupts of 1542 was the first statute
under English law dealing with bankruptcy
or insolvency. Bankruptcy is also documented
in East Asia. According to al-Maqrizi, the Yassa of Genghis Khan contained a provision that mandated the death penalty for anyone who became bankrupt
three times.
A failure of a nation to meet bond repayments
has been seen on many occasions. Philip II of Spain had to declare four state bankruptcies in 1557, 1560, 1575 and 1596. According to Kenneth S.
Rogoff, "Although the development of international capital markets was
quite limited prior to 1800, we nevertheless catalog the numerous defaults of
France, Portugal, Prussia, Spain, and the early Italian city-states. At the
edge of Europe, Egypt, Russia, and Turkey have histories of chronic default as
well."
2.1.3
Bankruptcy in Indonesia
The Law Basic about bankruptcy in
Indonesian constitution there are in:
1. Pasal 1131 KUH Perdata;
2. Pasal 1132 KUH Perdata;
3. UU Kepailitan No. 4 Tahun 1998;
4. UU Perseroan terbatas;
5. UU Hak Tanggungan No. 4 Tahun 1996;
Indonesian economics increase after
freedom of Indonesian in administrative. Company in Indonesian continues to
grow an be a better country in economic life. Beside that, many problem in
major and minor area happened. One of the major area in Indonesia is
bankruptcy.
2.2
Problem
Analysis
Bankruptcy
Cause of PT Arpeni Pratama
Korea
Securities Finance Corporation asked bankruptcy petition to PT Arpeni Pratama
Ocean Line Tbk, who be a YED 5, S.A guarantor. In that petition, Korea
Securities Finance claimed YED 5, S.A., a company that established based on
Republic of Panama Law, still have an maturity obligation, US$2,15 million.
YED
5, According Korea Securities, didn’t pay that Obligation, so the obligation
billed to PT Arpeni who YED 5 guarantor, based on letter of guarantee on 22 May
2007.
Based
on the letter of guarantee, PT Arpeni Pratama stated as side who guarantee
without requirement and couldn’t canceled, Include interest expense and other
maturity expense. To filed the bankruptcy petition requirement appropriately in
UU No. 37/2004 about bankruptcy and Obligation Pay Moratorium, petitioner
enclose other creditur, Sekwang Shipbuilding Co Ltd.
The
Obligation, US$2,15 million, of Sekwang appear because PT Arpeni sign a performance
guarantee for Purchase Transaction of a ship between Sekwang and YED 5, S.A.
The law relation between both side started when YED 5, S.A. and other creditors and Korea
Securities sign a facility agreement on 22 May 2007 and appointed Woori Bank,
Hongkong Branch, as creditor agent.
Based
on agreement, according to Korea Securities side, YED 5 will receive obligation
at the amount of US$19,9 million from other Creditors including Korea
Securities (petitor), used to purchase one oil tanker ship or chemicals.
Petitor
have purchased the obligation (junior
bond) on 30 May 2007 at the amount of US$4,7 miliion that published and sold
by YED 5. While PT Arpeni (petitee) act as a guarantor based on letter of
guarantee on 22 May 2007.
According
to that obligatioan, petitor claim, YED 5 have return the obligation to creditor
(senior bond), but that company from
Republic of Panama still have residual obligation at the amount of US$2,15
million to petitor.
CHAPTER III
CONCLUSION AND SUGGESTION
3.1
Conclusion
1. Cause of bankruptcy PT Arpeni
Pratama
Korea Securities
Finance Corporation filed a bankcruptcy petition against PT Arpeni Pratama
Ocean Line Tbk, which is the guarantor of yead 5, S.A.
Bankcruptcy
petition in Commerce Court Secretariat Jakarta No.67/
PAILIT/2010/PN.NIAGA.JKT.PST, Korea Securities claim YED 5, S.A., the company incorporated
under the laws republic of Panama, still have obligations that have matured
amound US$ 2.15 million.
According to
Korea Securities, debt payment was not met by YED 5, so that eventually billed
to PT Arpeni which is the guarantor of YED 5 by letter of guarantee date 22 May
2007.
2. Procedure to be followed after bankrupted PT Arpeni
1. Bankruptcy petition filed with the
court chairman
2. Registrar to register the bankruptcy
petition is filed date, and to the applicant a written receipt.
3. Registrar shall refuse registration
of a bankruptcy petition for the institution as in article 1, 2, 3, 4, and 5 if
it was not in accordance with the provisions of that article.
4. Registrar submit a bankruptcy
petition to the chairman of the court no later than 2 days after date the
petition is filed.
5. In order not later than 3 days after
the date a bankruptcy petition filed, the court studied the petition and set a
date for a hearing.
6. The examination washeld in the
bankruptcy petition no later than 20 days after date the petition is filed.
7. Upon the request of the debtor, and
based on sufficient grounds, the court may postpone the hearing referred to in
paragraph 5 no later than 25 days after date the petition is filed.
3.2
Suggestion
Korea Securities Finance should not be directly cast to PT
Arpeni bankrupt because not PT Arpeni having debt but YED 5, S.A. PT Arpeni
only gurator for YED 5,S.A and
bankruptcy should first pursue the debts on principal debtor (YED 5, S.A) and
not directly charge to PT Arpeni.
BIBILIOGRAPHY
Asikin, Zainal. 2009.
Hukum-kepailitan-modern. (Internet). Indonesia : http://www.hukumonline.com.diakses tgl: 5Januari 2011.
Asikin, Zainal. 1991. Hukum kepailitan dan penundaan pembayaran di
Indonesia.
Rajawali Press: Jakarta.
Hartini, Rahayu. 2008.
Hukum Kepailitan. (Internet). Indonesia: www.hukumkepailitan.com.
diakses tgl: 17Januari
2011.
Hasan, Dahsan, S.H, M.H. 2010.Kepailitan. Makassar : Politeknik Negeri
Ujung Pandang.
Herman. 2010.
Pengetian dan syarat-syarat kepailitan.
(internet). Indonesia: http://herman-aboutlaw.blogspot.com. diakses tgl: 5 Januari 2011.
Yani, Ahmad.
2008. Seri hukum bisnis dan kepailitan.
Raja Grafindo Persada: Jakarta.
