Academic literature on the topic 'Negligent creditors'

The COVID-19 pandemic situation has caused the destruction of economies throughout the world, including Indonesia. The negligence of the debtor due to the COVID-19 pandemic can be used as a reason to apply for a postponement of debt obligations. Due to the Covid-19 pandemic which disrupts the financial stability of the debtor, so that the debtor cannot pay off his debt or is negligent to the creditor, he can apply for a suspension of debt payment obligations. On the basis of the covid-19 pandemic, that the impossibility of carrying out the contract in the form of financial incapacity. UUK & PKPU provide legal protection to debtors in the midst of the covid-19 pandemic so they don't fall into bankruptcy through PKPU as stipulated in article 222 of the UUK & PKPU. The type of research used is normative legal research. The practice of paying debts through applications for postponement of debt payment obligations (PKPU) based on Law No. 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, which starts from the procedure for submitting a PKPU application, temporary PKPU, publication of PKPU decisions, receipt of invoices, making a list of temporary receivables, implementation of the reconciliation meeting for the preparation of a list of permanent receivables, a discussion meeting on the reconciliation plan which includes restructuring of offers to creditors related to the reconciliation plan. The postponement of debt payment obligations (PKPU) is not enough to provide an opportunity for debtors with good intentions to carry on their business. Because the peace process is determined by the creditor, the UUK & PKPU require a reconciliation process with the approval of the creditor. The rules of Article 229 UUK & PKPU give full power to creditors, this causes debtors to depend on the decisions of creditors.

Bankruptcy is regulated in Act No. 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations (PKPU). In the regulation, the company is declared bankrupt, meaning that when the debtor (debt owner) has two or more creditors (debtors) who do not pay debts that are due and can be collected (cause of bankruptcy). The responsibility of the Board of Directors whose company is experiencing bankruptcy is in principle the same as the responsibility of the Board of Directors whose company is not experiencing bankruptcy. Bankruptcy status applies when there is a decision of the Commercial Court, whether it comes from the application itself or one or more creditors. After being declared bankrupt, the court decided to sell all of the company's assets, the proceeds of which were used to pay the debtors' obligations that were already bankrupt to the creditors. Based on the aforementioned background, a problem can be drawn as follows: What is the liability of the directors who are declared bankrupt? How can the board of directors be declared negligent or wrong which results in the corporation being declared bankrupt? The approach method used in writing this law is normative juridical or also called doctrinal law research. The research specification in this writing is descriptive-analytic. Based on the results of the research, it can be concluded that the Board of Directors is not personally responsible for the actions committed for and on behalf of the Company based on their authority. This is because the actions of the Board of Directors are seen as actions. The Board of Directors is said to have been wrong or negligent which resulted in the Company being declared bankrupt, namely the lack of good faith by the directors to pay off debts to creditors. The Board of Directors neglected to pay off debts to creditors.

Tujuan penulisan jurnal ini untuk mengetahui konsekuensi yuridis terkait kredit bank yang diperoleh dari tindakan pemalsuan tanda tangan dan mengetahui perlindungan hukum terhadap kreditur atas pelepasan kredit dengan pemalsuan dokumen. Metode penelitian hukum normatif dengan pendekatan perundang-undangan dan konseptual digunakan dalam penulisan artikel ini. Hasil penelitian ini menunjukkan kreditur dan debitur telah melakukan perbuatan melawan hukum dalam pasal 1365 KUHPer karena kreditur lalai dalam kegiatan perbankan dan debitur melakukan penipuan dan pemalsuan dokumen dengan menggadaikan benda milik orang lain sebagai agunan di bank, yang mengakibatkan kerugian terhadap pihak yang bersangkutan yaitu pemegang hak milik benda tersebut. Konsekuensi yuridis terkait kredit bank yang diperoleh dari pemalsuan tanda tangan adalah kredit tersebut batal demi hukum karena tidak memenuhi syarat sahnya suatu perjanjian yang diatur dalam pasal 1320 KUHPer dan pasal 1321 yang menjelaskan tidak ada kesepakatan jika perjanjian terjadi karena adanya kekhilafan dan tipuan. Perlindungan hukum terhadap kreditur karena lalai dalam kegiatan pencairan kredit adalah pihak kreditur terdapat dalam pasal 1265 syarat pengembalian keadaan seperti semula. The aims of study to find out the juridical consequences related to bank credit that obtained from the act of signature forgery and knowing the legal protection of creditors for the release of credit by falsifying documents. The normative legal research method with the legistlavite approach and conceptual approach were used in writing this article. The results of this study are that creditors and debtors have committed acts against the law in article 1365 of the civil code because creditors are negligent in banking activities and debtors commit fraud and falsification of documents by mortgaging other people's property as collateral in the bank, resulting in losses to the parties concerned is that the owner of the propert right . Juridical consequences related to bank credit obtained from falsification of signatures is that the credit is null and void because it does not meet the legal requirements for an agreement provided for in article 1320 of the civil code and article 1321 which explains that there is no agreement if the agreement occurs because of an error and deception. Legal protection for creditors due to negligence in the activities of credit disbursement is the creditor contained in article 1265 conditions of returning the original condition.

In carrying out its business, businessmen often establish a debt agreement. Debt agreements are a common thing between creditors and debtors. However, at times, it may cause a dispute between debtors who are negligent and unable to pay their debts to creditors. One of the eff orts to overcome the unpaid debt is through Bankruptcy and Postponement of Debt Payment Obligations petitioned by the debtors or the creditors. Bankruptcy is the general seizure of all the assets of a bankrupt debtor whose management and settlement is carried out by the Curator under the supervision of the Supervisory Judge. On the other hand, Postponement of Debt Payment Obligations (PKPU) is the settlement of the debt, also aiming to establish a peace off er that includes off ers of partial payment or whole payment of the debt to the creditors. Bankruptcy and PKPU in its implementation have been regulated in Indonesian Law Number 37 of 2004 on Bankruptcy and Postponement of Debt Payment Obligations, Herziene Indonesisch Reglement (HIR), Reglement of De Rechtsvordering (Rv), Buitengewesten Rechtsreglement (RBg), and further stipulated in the Civil Law Procedure-Draft. In Bankruptcy and Postponement of Debt Payment Obligation’s procedural law arrangements contained in various regulations and in the Civil Law Procedure-Draft, there are shortcomings that need to be analyzed to provide a legal basis for Bankruptcy and Postponement of Debt Payment Obligations procedural law arrangements. Considering the upcoming legalization of the Civil Law Procedure-Draft, this study will analyze several important points that can be used as a reference for the Civil Law Procedure-Draft.

Directors of solvent companies owe a fiduciary duty to shareholders qua the company. If a company becomes technically insolvent, the duty switches to the company’s creditors. This is uncontroversial. However, the duty is also said to switch some point before, i.e., in the ‘vicinity of insolvency’. Therefore, directors must be able to make decisions which do not prejudice shareholders, in a way that is free from exposure to claims by creditors. This uncertainty stems from the case law, where the rules of company law have been confused with the policies underlying insolvency law. The two bodies should be considered separately despite their interrelationship in practice. Doing so reveals the proper and fair function of the duty. Its application should be limited to cases of actual insolvency only. While exceptions may be made for cases of irresponsible or negligent risk-taking, this should be the exception – not the rule. This essay is the first of two parts, and examines the emergence of the duty and possible justifications. company law, insolvency law, directors’ duties, fiduciary duties, agency costs

Directors of solvent companies owe a fiduciary duty to shareholders qua the company. If a company becomes technically insolvent, the duty switches to the company’s creditors. This is uncontroversial. However, the duty is also said to switch some point before, i.e., in the ‘vicinity of insolvency’. Therefore, directors must be able to make decisions which do not prejudice shareholders, in a way that is free from exposure to claims by creditors. This uncertainty stems from the case law, where the rules of company law have been confused with the policies underlying insolvency law. The two bodies should be considered separately despite their interrelationship in practice. Doing so reveals the proper and fair function of the duty. Its application should be limited to cases of technical insolvency only. While special cases may be made for irresponsible or negligent risktaking by directors, this should be the exception – not the rule. This article is the second of two parts examining this issue, focussing on the current trigger for the duty and exploring possible solutions. Company law, insolvency law, directors’ duties, fiduciary duties, agency costs

Bank credit activities carried out with all internal policies must apply the principle of prudence. PPJB which is a binding agreement between the parties whose rights are not yet perfect, compilation is used as a guarantee of mortgage rights can be a cause of failure to fulfill the prudential principle. This research is a normative juridical research, using literature approach. The results of the discussion and conclusion of this study show: Bank's internal policy that states PPJB used as security of mortgage can be done using the process of making a Note Cover. This can bring the bank in the position of being stolen because making a Cover Note does not require an approved deed related to the buying and selling process such as a sale and purchase certificate or certificate. Furthermore, debtors who are negligent or have no good intentions, the Cover Note does not increase to become a certificate. Such participation makes the object to be requested or bound with mortgage rights still needed, so the position of the bank's creditors is threatened as concurrent creditors who do not have a special position of compilation in the credit process.

Encounter rapidly growing, competitive, and integrated national economic development with increasingly complex challenges and an increasingly advanced financial system that requires policy adjustments in the economic field, including banking. Economic recovery is inseparable from the banking business's hazardous credit distribution. Therefore, collateral is significant in the issuance of credit. In practice, the Bank as a creditor provides credit facilities to the debtor. SKMHT was made to become a basis for making a Deed of Mortgage Rights (APHT). However, SKMHT has a term. Thus, both the creditor and the notary / PPAT must pay serious attention to the validity period because the expired SKMHT affects the APHT cannot be registered, so the Bank cannot execute the debtor's default guarantee object. The problems in this study are the factors that affect creditors in credit agreements with SKMHT guarantees that cannot register their rights and how to protect creditor law in credit agreements with SKMHT guarantee based on PMA / KBP Number 22 of 2017. The research method used is juridical-empirical and descriptive analysis, then analyzed qualitatively. Banks in credit binding only limited SKMHT as a bridge to make APHT. When SKMHT cannot be increased to APHT, the Bank cannot execute the guarantee object in the credit agreement. The factors that influence SKMHT cannot be upgraded to APHT because the Bank gives credit on specific credit based on the PMA / KBPN Number 22 of 2017, the process of registration of the mortgage is too long, negligent Notary / PPAT considering the expiry of SKMHT period so that the legal protection that can be done is by filing a civil suit at the local District Court with evidence of the binding of credit agreement between the Bank and the debtor. So that the object of the collateral can be executed.

In the process of granting credit, it often happens that the creditor loses when the debtor defaults so that legal rules are required in the implementation of the imposition of the mortgage as stated in a credit agreement, which aims to provide legal certainty and protection for the parties concerned. So, it raises a lawsuit for the cancellation of the auction. Based on these problems, this research aims to answer problems regarding the auction implementation of mortgage rights against debtors who are negligent by the Bank, limits on the determination of the auction limit value for the object of guarantee rights of security rights, and legal protection for bank customers for auction that does not match the value of a collateral object. This study uses an empirical juridical method by conducting literature studies and interviews with informants. The research and discussion results found that: First, the implementation of the mortgage right execution auction can be used as an alternative when bad credit occurs as a result of the customer (the debtor) in default to his creditor. The Bank, as the creditor, has the right to collect receivables from the sale of the object of the mortgage, which is guaranteed by an auction mechanism following the provisions of Law Number 4 of 1996 concerning Mortgage Rights for Land and Other Objects Related to Land. Mortgage rights in the credit agreement have a function to provide a sense of security for creditors in case of default by the debtor through the mortgage’s execution. Second, the limit value’s determination must be determined based on an appraiser’s assessment. So that if the determination of the limit value is so low, it can be used as one of the reasons for the auction’s cancellation. This is based on the provisions of Article 43 and Article 44 of the Regulation of the Minister of Finance of the Republic of Indonesia Number 27/PMK.06/2016 concerning Instructions for Conducting Auctions. Third, as a guarantee of legal protection for customers, if there is a loss due to implementing an auction that is not based on applicable legislation.

Peace efforts filed by the business entity PT Kertas Leces (Persero) (hereinafter referred to as the Respondent) in the Debt Payment Obligation Postponement (PKPU) process in collaboration with PT Lautan Warna Sari (hereinafter referred to as the Applicant), which was ratified into a Peace Agreement (homologation) decided by the Commercial Court in Decision No. 05/PKPU/2014/PN.Niaga.Sby. The Peace Agreement (homologation) contains an agreement that must be fulfilled by the respondent to the applicant. However, in its implementation, the respondent was negligent and could not fulfill these provisions so that the applicant filed for cancellation of the peace agreement. The request was granted by the court through Decision Number 1/Pdt.Sus.Cancellation of Peace/2018/PN Niaga.Sby so as to declare the respondent bankrupt with all legal consequences. The research will discuss 2 (two) problems, namely (1) The legal consequences of breach on the peace agreement (homologation) between PT Lautan Warna Sari and PT Kertas Leces (Persero) and (2) Efforts to resolve breach on the peace agreement (homologation) between PT Lautan Warna Sari and PT Kertas Leces (Persero). The research uses a normative juridical approach, which is a study of the law that conceptualizes the law as norms, rules, regulations and applicable legislation. The research shows that the legal consequences of breach on the peace agreement (homologation) between PT Lautan Warna Sari and PT Kertas Leces (Persero) is the cancellation of the peace agreement because PT Kertas Leces as a debtor neglects to fulfill the agreement in the agreement so that the debtor is declared bankrupt. The debtor also bears compensation and risk transfer through the disposal of the debtor's bankruptcy assets by the curator. In addition, the debtor also pays court costs. Efforts to resolve breachs on the peace agreement (homologation) between PT Lautan Warna Sari and PT Kertas Leces (Persero) are through the administration of bankruptcy assets by concurrent with procedures, first, the debtor will pay preferred creditors, namely the normative rights of former employees. Second, the debtor will pay a percentage of the debtor's assets to the state treasury as non-tax revenue from bankruptcy. Third, the debtor will pay other creditors in accordance with their receivables.

La déclaration de créance est une procédure obligatoire réservée à tous les créanciers d'un débiteur qui fait l'objet d'une procédure collective. Elle a principalement une finalité financière et à pour objectif la connaissance du passif du débiteur, et donc de mesurer son endettement au jour du jugement d'ouverture. Cela se justifie par le fait que le nouveau droit des entreprises en difficultés, contrairement à la faillite ancienne, instaure une soumission aux règles rigoureuses de la discipline collective à tous les créanciers de l'entreprise défaillante. Lesquelles règles limitent le pouvoir d'action des créanciers contre cette dernière.il va sans dire que la déclaration de créance revêt un avantage considérable pour le débiteur dans la mesure où elle permet au tribunal d’apprécier (après les procédures de vérification et d'admission des créances), les solutions envisageables pour le sauvetage de l'entreprise défaillante à travers le poids de son passif exigible. De même, elle permet d'entretenir une certaine égalité entre les créanciers de l'entreprise qui vont assurer la reconnaissance de leur droit afin de sauvegarder leur chance de participer à la procédure collective de leur débiteur. Son fondement juridique est précisé par les articles L. 622-24 et suivants du code de commerce français et 78 et suivants de l'acte uniforme portant organisation des procédures collectives (AUPC). Ainsi, à partir de la publication du jugement d'ouverture, tous les créanciers dont la créance est née antérieurement au jugement d'ouverture et les créanciers postérieurs exclus du traitement préférentiel de l'article L. 662-17 du code de commerce français, à l'exception des salariés, adressent la déclaration de leurs créances au mandataire judiciaire dans un délai de deux (2) mois. à défaut de déclaration, les créances non déclarées sont frappées de forclusion et les créanciers négligeant sont exclus des opérations de distribution pendant toute la procédure. Lorsque le créancier a été relevé de forclusion conformément à l'article L. 622-26 du code de commerce français, les délais ne courent qu'à compter de la notification de cette décision ; ils sont alors réduits de moitié. Le délai de déclaration court à l'égard de ceux-ci à compter de la notification de cet avertissement. La déclaration de créance était traditionnellement assimilée à une demande en justice. Ainsi jusqu'à l’ordonnance du 12 mars 2014, il était exigé, pour la validité de la déclaration faite par une personne autre que le débiteur, un mandat spécial donné par écrit pour l'effectuer. De même, le mandataire devait ensuite être capable d'apporter la preuve du mandat reçu jusqu'au jour où le juge statue. Dans le nouveau droit des entreprises en difficulté, la déclaration de créance est perçue comme un simple acte conservatoire, dans la mesure où elle s'apparente, par certains cotés, plus à une mise en demeure ou à une formalité administrative. Nous devons cette remise en cause de la nature de la déclaration de créance à l’ordonnance française du 12 mars 2014. Ce qu'il convient de saluer dans la mesure où cette évolution contribue à l'amélioration de la conservation des droits des créanciers. Malgré le lien de parenté très poussé existant entre les législation française et OHADA, force est de constater que le législateur OHADA n'a pas su profiter de sa récente réforme du 10 septembre 2015 pour simplifier la procédure de déclaration de créance comme cela a été fait en 2014 en France. Si un tel manquement peut se justifier par la jeunesse de la législation en vigueur dans la zone OHADA, il convient pour le législateur OHADA, qu'une évolution soit envisagée en la matière. ce qui peut inciter, à notre sens, le débiteur à fournir aux organes de la procédure, une liste complète de ses créanciers et permettre ainsi à ces derniers de bénéficier des mêmes chances d'être désintéressés
The declaration of claim is a compulsory procedure reserved for all creditors of a debtor who is the subject of collective proceedings. It has a mainly financial purpose and its objective is to ascertain the debtor's liabilities, and therefore to measure his indebtedness on the day of the opening judgment. This is justified by the fact that the new law on companies in difficulty, unlike the old bankruptcy, introduces a submission to the rigorous rules of collective discipline for all the creditors of the failing company. It goes without saying that the declaration of claims is of considerable benefit to the debtor in that it allows the court to assess (after the verification and admission of claims) the possible solutions for rescuing the failing company through the weight of its liabilities. Similarly, it makes it possible to maintain a certain equality between the company's creditors, who will ensure that their rights are recognised in order to safeguard their chance of participating in the collective procedure of their debtor. Its legal basis is specified by Articles L. 622-24 et seq. of the French Commercial Code and 78 et seq. of the Uniform Act Organising Collective Proceedings (AUPC).Thus, from the publication of the opening judgment, all creditors whose claims arose prior to the opening judgment and subsequent creditors excluded from the preferential treatment of Article L. 662-17 of the French Commercial Code, with the exception of employees, shall send a declaration of their claims to the judicial representative within two (2) months. Where the creditor has been relieved of foreclosure in accordance with Article L. 622-26 of the French Commercial Code, the time limits only run from the notification of this decision; they are then reduced by half. The time limit for filing a claim runs from the notification of this warning. Traditionally, a claim declaration was treated as a legal claim. Thus, until the Ordinance of 12 March 2014, a special written mandate was required for the validity of a declaration made by a person other than the debtor. Similarly, the agent then had to be able to provide proof of the mandate received until the day the judge ruled. In the new law on companies in difficulty, the declaration of claim is perceived as a simple conservatory act, insofar as it is, in certain respects, more akin to a formal notice or an administrative formality. We owe this reconsideration of the nature of the declaration of claim to the French order of 12 March 2014.This is to be welcomed insofar as this development contributes to improving the preservation of creditors' rights. Despite the close relationship between French and OHADA legislation, it must be noted that the OHADA legislator has not taken advantage of its recent reform of 10 September 2015 to simplify the procedure for declaring claims as was done in 2014 in France. While such a failure can be justified by the youth of the legislation in force in the OHADA zone, it is appropriate for the OHADA legislator to consider a change in this area. In our opinion, this could encourage the debtor to provide the bodies of the procedure with a complete list of his creditors and thus enable the latter to benefit from the same chances of being paid

The subject of the analysis relates the liabilities against the banks arising from the lending to companies in economic distress or default ("concessione abusiva di credito"). Traditional doctrines, from France and Belgium, affirmed that the bank should be considered liable for the damages caused to the creditors of the company. This claim is based on the principle of entrust and deceptive appearance: the creditor negotiates with the company, and trusts the company's solvency, because the bank funded (and keeps on founding) it. Italian courts (see also Cassazione Sezioni Unite 7029-7030-7031/2006) followed the above mentioned interpretation, but determined that the creditor's claim is personal: the bank cannot be sued by the official receiver ("curatore fallimentare"). As a consequence of the above, banks are actually immune from any claim: single creditors do not have the power and information needed to prove the liability. “Concessione abusive del credito”, under this interpretation, is a rigid and limited tort. Some Authors suggested that the banks, in case of negligent lending, can be considered as shadow directors - interfering in the company's decisions - and can be sued by the official receiver ("curatore fallimentare") for the damages caused to the company itself. This analysis explores another solution, resulting from recent studies in Germany (H. KÖTZ, Vertragsrecht, Tübingen, 2009) and Italy (C. MIGLIO, L’autonomia privata nel rapporto di finanziamento bancario, Giust. Civ. 2013, 9, p. 473). Briefly, under this different interpretation, the bank's loan granted to companies defaulted and/or in distress, should be considered void. This different solution considers the “concessione abusive di credito” a threat to economic public order, generating negative externalities. Italian Constitution states that economic initiatives (“iniziativa economica”) cannot be contrary to public social utility (art. 41 co 2) – and bank law declares that the bank is obliged to a safe and prudent lending (art. 5 T.U.B.). As a consequence of the above mentioned second interpretation, the banks lose every guarantee, mortgage and surety securing the relevant loans; furthermore the banks can be sued by “curatore fallimentare” for precontractual liability (art. 1338 c.c.): if someone does not disclose the voidness of a contract (that he knows or should know that it is void) the other part shall be compensated of the relevant damages suffered. The last step of the analysis regards loan agreements executed in the framework of a restructuring procedure. Italian bankruptcy law has developed in the last 10 years three different restructuring procedures: “piani di risanamento” (art. 67 l.fall.), “concordato preventivo” (art. 160 l.fall.) and “accordi di ristrutturazione dei debiti” (art. 182-bis l.fall.). According to the prevailing doctrine, in the context of a restructuring procedure, the bank cannot be considered liable of “concessione abousiva di credito”: the relevant loan agreement is promoted and fostered by Italian law. But under an economic analysis of such law, a “no liability” rule is inefficient: the bank could avoid any credit rating and investigation on the condition of the company, allocating the default risk on the other creditors. We suggest that Italian law’s “favor” should be valued in considering bank’s malice or negligence. Only when the lender knows (or should have known) that the turnaround plan was inconsistent, he should be asked for compensation by the creditors. In this perimeter, the contract should be usually considered enforceable: Italian law encourages lending during the turnaround procedures – the contract is not contrasting economic public order, but it can be the base of a compensation plea.

Sometimes the sequence of events is important for establishing rights and obligations, and sometimes it is not. For example, if a nuisance was there before the neighbouring residences arrived, the nuisance is sometimes allowed to continue in the same location under the doctrine of coming to the nuisance. When and why should the doctrine be (or not be) upheld? While many concepts in law and economics do not explicitly have a time dimension, once we start thinking about ex ante versus ex post, a large number of seemingly unrelated areas of the law involve similar issues of sequence. When new regulations are imposed, sometimes pre-existing businesses are exempt and sometimes not. In accident law, negligent behaviour by the first actor may require the second actor to take action beyond the ordinarily efficient actions as can be seen in the doctrine of last clear chance. What is the underlying rational for the application of this rule? Rights typically go to the highest bidder, but at 4-way stop signs, rights are granted according to who was there first. In other areas involving traffic, being first accedes to other criteria such as majority rule. As a final example, priority in bankruptcy gives the right to the first creditor of the same secured debt, but not to the first creditor of unsecured debt. Why? This article presents an efficiency-based framework for answering these questions.