Fiduciary Guarantee is defined as right over collateral on moving objects both tangible and intangible, particularly on building that cannot be encumbered by mortgage and remain in a possession of fiduciary provider as a collateral for the payment of certain debt which provides the preferred position towards fiduciary recipient to other creditors (“Fiduciary Guarantee”).
In order for the concerned parties to be covered with legal certainty, Article 11 Paragraph (1) of Law No. 42 of 1999 on Fiduciary ("Law No. 42/1999") suggests that any objects loaded with Fiduciary Guarantee shall be registered.
The procedure of Fiduciary Guarantee Registration along with its other requirements is regulated under Government Regulation No. 21 of 2015 on the Procedure of Fiduciary Guarantee Registration and the Cost of the Deed of Fiduciary Guarantee (“GR 21/2015”) which has been enacted since 6 April 2015. This regulation revokes the previous Government Regulation No. 86 of 2000 on the Procedure of Fiduciary Guarantee Registration and the Cost of the Deed of Fiduciary Guarantee (“GR 86/2000”)
The Application Procedure
Based on article 4 of GR 21/2015, the registration of Fiduciary Guarantee shall be submitted no longer than 30 (thirty) days since the commencement date of the establishment of Fiduciary Guarantee Deed (“Deed”).
Furthermore, to conduct the registration of Fiduciary Guarantee, the recipient of the Fiduciary, and/or representative, and/or applicant (“Applicant”) shall submit such registration to the Minister of Law and Human Rights (“MLHR”). Previously, GR 86/2000 stipulated that the application of Fiduciary Guarantee (“Application”) was submitted in a written form to MLHR in Indonesian language through the fiduciary Registration Office by attaching the Registration statement of the Fiducary Guarantee. However, such registration method is believed to face an obstacle by considering the huge amount of applications obtained beyond the capabilities of human resources and existing facilities. In solving such issue, the registration using a written application has been amended with Fiduciary Guarantee registration through an electronic system in accordance with Article 2 Paragraph (2) GR 21/2015.
The application of the registration of Fiduciary Guarantee consists:
- The identity of the fiduciary provider and fiduciary recipient;
- Date, number of Fiduciary Deed, name, and the domicile of the notary who made Fiduciary Deed;
- Principal agreement data guaranteed by fiduciary;
- A description regarding item that becomes an object for Fiduciary Guarantee;
- The value of the guarantee; and
- Value of an item that becomes an object for Fiduciary Guarantee.
Moreover, after the registration complies with conditions stated above, the Applicant will obtain the proof of registration as follows:
- Registration number;
- Date of filling the application;
- Name of the Applicant;
- Name of Fiduciary Registration Office;
- Type of application; and
- Fiduciary Registration fee.
The electronic record of the registration shall be performed should the payment of the registration fee has been made by the Applicant. Such payment can be done through the receiving bank.
The Fiduciary Guarantee will be created electronically on the date of the record of Fiduciary Guarantee. Fiduciary Certificate (“Certificate”) shall also be signed electronically by the official at the fiduciary registration office. Then, the molding of the Certificate will be performed pursuant to the date when the registration of Fiduciary Guarantee was recorded.
The Cost of the Deed
The cost of the Deed shall be determined based on the value of the guarantee with the following provisions:
- The amount of guarantee is up to 100,000,000.00,- (one hundred million Rupiah), the cost of the Deed is 2.5% (two point five percent) maximum;
- The amount of guarantee is over 100,000,000.00,- (one hundred million Rupiah) up to 1,000,000,000.00,- (one billion Rupiah), the cost of the Deed is 1.5% (one point five percent) maximum; and;
- The amount of guarantee is above 1,000,000,000.00,- (one billion Rupiah), the cost of the Deed is based on the agreement between the Notary and the parties, however 1% (one percent) is the maximum of the value of the object of the Deed.
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