scholarly journals PERLINDUNGAN HUKUM TERHADAP PEMENANG LELANG SEBAGAI PEMBELI BERITIKAD BAIK YANG DIGUGAT KEMBALI

2020 ◽  
Vol 5 (1) ◽  
pp. 1-18
Author(s):  
Putu Eka Trisna Dewi
Keyword(s):  
Property Rights ◽  
Legal Protection ◽  
Civil Code ◽  
Good Faith ◽  
High Court ◽  
Legal Remedies ◽  
The Supreme Court ◽  
Original Owner ◽  
Credit Agreement ◽  
Selling Effort

When the bank debtors did not make the payment, the bank as the holder of the mortgage is bound in the credit agreement by obtaining fulfillment of the debtor's credit through an auction process as mandated by law. Problems will arise if the auction winner cannot own or control what he has won because the debtor uses the auction process on the collateral. Then the winner of the auction is a buyer with ‘good faith’ who must be protected by law, and legal protection for the buyer with ‘good faith’ as stated in article 584 of the Civil Code of ‘good faith’ exists if the property rights are obtained through one of the means to obtain property rights, where from that article It is known that some of the transfer of existing property rights cannot be separated from the existence of the agreement law in the Civil Code. Legal remedies that can be taken by the injured parties during the auction execution by the court if there is a rebuttal due to the lawsuit made by the original owner which is later won by the court's decision of the original owner, then the auction holder can submit legal remedies to the high court to resolve the problem by way of an appeal to the Supreme Court. This is because selling through an auction is a civil selling effort and legal remedies that can be taken within the scope of civil law.

scholarly journals Reorientasi Asas Itikad Baik/Kebenaran Sebagai Dasar Kepemilikan Hak Atas Tanah

2019 ◽  
Vol 9 (1) ◽  
pp. 102
Author(s):  
Supriyadi Supriyadi
Keyword(s):  
Legal Protection ◽  
Land Rights ◽  
Land Ownership ◽  
Civil Code ◽  
Good Faith ◽  
Basic Question ◽  
Original Owner ◽  
Legal Position ◽  
Customary Land ◽  
The Village

<div><p>Perpindahan hak terhadap kepemilikan tanah terpancang pada aturan bahwa seseorang tak dapat mengalihkan sesuatu melebihi dari apa yang dimilikinya hal ini  berhadapan dengan asas ‘<em>bona fides’</em> (itikad baik) yang melindungi pembeli beritikad baik. Posisi hukumnya  menempatkan dua belah pihak yang pada dasarnya tidak bersalah untuk saling berhadapan di pengadilan dan meminta untuk dimenangkan, akibat ulah pihak lain yang mungkin beritikad buruk. Pertanyaan mendasarnya, dalam hal ini pihak manakah yang seharusnya mendapatkan perlindungan hukum, apakah pemegang hak atas tanah  atau  pembeli yang mengaku beritikad baik? Alasan yang paling banyak digunakan adalah telah dilakukannya jual beli melalui notaris/PPAT  Perlindungan terhadap pembeli beritikad baik adalah sebuah perkecualian, yaitu ketika pembeli tidak dapat menduga adanya suatu kekeliruan dalam peralihan hak dan kekeliruan itu terjadi akibat kesalahan pemilik sendiri (toedoenbeginsel). Jika kemudian timbul sengketa, maka harus dipertimbangkan apakah terjadinya peralihan yang tidak sah itu lebih disebabkan oleh kesalahan pembeli yang tidak mencermati asal usul tanah yang dibelinya, atau kesalahan pemilik asal yang tidak menjaga haknya dengan baik. UUPA dan PP No. 24/1997 tidak menjelaskan pengertian ‘itikad baik’. Penegasan ini disimpulkan dari ketentuan KUHPerdata, literatur, dan putusan-putusan. Dalam hal ini, standar yang seharusnya digunakan bukan hanya tahu atau tidaknya pembeli berdasarkan pengakuannya sendiri (subyektif), namun juga apakah pembeli telah melakukan upaya untuk mencari tahu (obyektif), baik secara formil (dengan melakukan transaksi di depan PPAT, atau Kepala Desa jika transaksinya adalah tanah adat), maupun secara materiil</p><p> <em>The transfer of rights to land ownership is fixed on the rule that a person cannot transfer something more than what he has. This is faced with the principle of 'bona fides' (good faith) which protects buyers with good intentions. Its legal position places two basically innocent parties to face each other in court and ask to be won, due to the actions of other parties who may have bad intentions. The basic question is, in this case which party should get legal protection, are the holders of land rights or buyers who claim good intentions? The most widely used reason is the sale and purchase through a notary / PPAT Protection of buyers with good intentions is an exception, that is when the buyer cannot predict the existence of an error in the transfer of rights and errors due to the owner's own fault (toedoenbeginsel). If a dispute arises, then it must be considered whether the illegitimate transition is caused more by the fault of the buyer who did not observe the origin of the land he bought, or the fault of the original owner who did not properly safeguard his rights. UUPA and PP No. 24/1997 does not explain the meaning of 'good faith'. This affirmation is concluded from the provisions of the Civil Code, literature, and decisions. In this case, the standard that should be used is not only whether or not the buyer is based on his own (subjective) recognition, but also whether the buyer has made an effort to find out (objectively), both formally (by conducting transactions before PPAT, or the Village Head if the transaction is customary land), and materially</em><em>.</em></p></div>

scholarly journals ANALISIS PERBUATAN MELAWAN HUKUM DALAM AKTA PERJANJIAN PENGIKATAN JUAL BELI (PPJB) TANAH ANTARA KOKO PURNOMO SANTOSO DENGAN PT. INTAN PLAZA ADIKA (Studi Kasus: Putusan Mahkamah Agung Nomor 17/K/Pdt/2016)

2018 ◽  
Vol 1 (1) ◽  
pp. 561
Author(s):  
Haryati Widjaja ◽  
Hanafi Tanawijaya
Keyword(s):  
Supreme Court ◽  
Civil Code ◽  
Good Faith ◽  
District Court ◽  
High Court ◽  
Legal Principles ◽  
Freedom Of Contract ◽  
The Supreme Court ◽  
Agreement Condition

Contract or agreement is an act pursuant to which one or more individuals commit themselves to one another. Based on the system that chapter III civil code used, chapter III civil code used opened system it means that every people can make an agreement with everybody and about anythings but the contract or agreement must be appropriate with terms of agreement and agreement principles. There are two kinds of agreement, first nominaat agreement, nominaat agreement is an agreement that already have a regulted in law. The second is innominaat agreement, innominaat agreement is an agreement that not regulated in law. condition sale and purchase agreement is innominaat agreement. Condition sale and purchase agreement was appeared because of freedom of contract. Eventhough condition sale and purchase agreement was made because freedom of contract but it must be appropriate with terms of agreement and agreement principles. If the agreement put aside the agreement principles and legal principles, the agreement can be null and void or can be canceled. In Koko Purnomo Santoso’s case, he already been punished for 4 years because, Koko sold lands that belongs to someone else and gave the wrong information in authentic deed. But, Intan Plaza Adika still want to continue the agreement because Intan Plaza Adika is a purchaser with good faith. The district court and high court agree with Intan Plaza Adika. But the supreme court said the opposite with district and high court, the supreme court said the agreement is null and void.

scholarly journals Juridical Review Of Nominee Agreement In Land Of Tenure Property Rights Under The Book Of Civil Law And Agraria

Jurnal Akta ◽  
2018 ◽  
Vol 5 (2) ◽  
pp. 441
Author(s):  
Indah Esti Cahyani ◽  
Aryani Witasari
Keyword(s):  
Property Rights ◽  
Legal System ◽  
Civil Law ◽  
Civil Code ◽  
Good Faith ◽  
Freedom Of Contract ◽  
Related Statement ◽  
The Subject ◽  
The Law ◽  
Legal Consequences

Nominee agreement is an agreement made between someone who by law can not be the subject of rights to certain lands (property rights), in this case that foreigners (WNA) and Indonesian Citizen (citizen), with the intention that the foreigners can master land de facto property rights, but legal-formal (de jure) land property rights are assigned to his Indonesian citizen. The purpose of this paper isto assess the position of the nominee agreement in Indonesia's legal system and the legal consequences arising in terms of the draft Civil Code and the Law on Agrarian. Agreement is an agreement unnamed nominee made based on the principle of freedom of contract and good faith of the parties. However, it should be noted that the law prohibits foreigners make agreements / related statement stock wealth / property (land) for and on behalf of others, sehingga the legal consequences of the agreement is the nominee of the agreement is not legally enforceable because the agreement was made on a false causa.Keywords: Nominee Agreement; Property Rights; Foreigners.

scholarly journals UNTANGLING THE REQUIREMENT OF GOOD FAITH IN THE DERIVATIVE ACTION IN COMPANY LAW (Part 1)

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Maleka Femida Cassim
Keyword(s):  
Company Law ◽  
Good Faith ◽  
The Other ◽  
Comparative Approach ◽  
Complex Issue ◽  
High Court ◽  
Legal Principle ◽  
The Supreme Court ◽  
Court Of Appeal

A crucial prerequisite for a derivative action is that the applicant must be acting in good faith in terms of section 165(5)(b)(i) of the Companies Act 71 of 2008 in order to obtain the leave of the court to bring the proposed derivative action. Both the Supreme Court of Appeal and the High Court have recently made important pronouncements of legal principle on the approach that the courts would take to the determination of good faith for the purposes of the statutory derivative action under section 165 of the Companies Act. These judicial findings relate not only to the complex issue of how to prove good faith but also to the meaning and content of the requirement of good faith. The courts have now reached a crossroads in delineating the content of good faith and how it is to be proved. This two-part series of articles critically evaluates these judicial pronouncements. While the focus of these articles is mainly on the tangled requirement of good faith, relevant judicial findings on the other prerequisites for a derivative action under section 165(5)(b) read with (7) and (8) of the Companies Act are also discussed. A comparative approach is adopted that takes into account the jurisprudence developed in Australia, Canada and Singapore. This article, the first in the series of two articles, focuses on the test of good faith. The proof of good faith will be discussed in the second article.

scholarly journals PERLINDUNGAN HUKUM BAGI KREDITUR PEMEGANG HAK TANGGUNGAN TERHADAP SENGKETA AGUNAN YANG MENGAKIBATKAN BATALNYA PERJANJIAN KREDIT

2018 ◽  
Vol 1 (1) ◽  
pp. 26
Author(s):  
Fransisca Kusuma Aryani ◽  
Gunawan Djajaputra
Keyword(s):  
Legal Protection ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
District Court ◽  
Good People ◽  
Warning Letter ◽  
The Law ◽  
Debt Repayment ◽  
Credit Agreement

The process of granting credit with the guarantee of Mortgage Rights experienced many obstacles, one of which is the cancellation of credit agreement due to a lawsuit from a third party. Examples of problems that will researchers take is a case between PT PNM as creditor and Erlinawati as a debtor. Erlinawati applied for credit to PT PNM and pledged SHM No. 1716 without her husband's agreement, Bagus Satriya. As time went by, Erlinawati could not fulfill its obligations as stipulated in the credit agreement, and then PT PNM sent a warning letter to Erlinawati. Good people who know the land and buildings of his property are used as a direct guarantee to file a lawsuit to the Blora District Court. The Blora District Court ruled that credit agreements and Deed of Mortgage Rights (APHT) are invalid and null and void. So far the legal protection for debtors who have sued from the other party on the guarantee given by the creditor has not been regulated specially in the legislation. The law only regulates bad debts and debt repayment through the execution process stipulated in the Law on Banking and Insurance Rights Act. Legal protection that creditor can use when obtaining a lawsuit from a third party is by using the general guarantees provided for in Articles 1131 and 1132 of the Civil Code.

PERLINDUNGAN HUKUM KONSUMEN DALAM JUAL BELI KENDARAAN BERMOTOR RODA DUA SECARA KREDIT PADA PT FEDERAL INTERNATIONAL FINANCE (FIF) DI SAMARINDA

2017 ◽  
Vol 1 (1) ◽  
pp. 45
Author(s):  
Wahyuni Safitri
Keyword(s):  
International Finance ◽  
Field Survey ◽  
Legal Protection ◽  
Secondary Data ◽  
Structured Interview ◽  
Good Faith ◽  
Primary Data ◽  
Faith Based ◽  
Force Majeure ◽  
Credit Agreement

This was a normative-judicial research on consumer legal protection in purchasing motorcycles by instalment through Federal International Finance (FIF) in Samarinda. It was aimed at investigating to what extend the purchasing of motorcycles by instalment through FIF is legally protected. The research collected both primary and secondary data. The primary data was collected by field survey conducted through semi-structured interview, while the secondary data was obtained by means of literature review. It was concluded, firstly, that the position of consumers in making instalment credits for motorcycles at FIF Samarinda was very weak. This was because the sale contract or credit agreement has been prepared in advance by the FIF. Legally, such a condition is acceptable because FIF is having good faith based on consumers’ agreement as stipulated in Article 1320 of KUH Perdata. Secondly, whenever the objets of the contract or agreement were in force majeure condition, the consumers were hardly protected.

scholarly journals Asas Itikad Baik Sebagai Upaya Perlindungan Hukum terhadap Pelaku Usaha Dalam Pembiayaan Konsumen (Studi Putusan Mahkamah Agung Republik Indonesia Nomor 1041 K/Pdt.Sus-BPSK/2017)

2019 ◽  
Vol 2 (1) ◽  
pp. 381
Author(s):  
Arfi Azhari ◽  
Siti Nurbaiti
Keyword(s):  
Supreme Court ◽  
Research Method ◽  
Legal Protection ◽  
Financial Service ◽  
Good Faith ◽  
Interview Data ◽  
Consumer Finance ◽  
The Supreme Court ◽  
The Republic

Consumer Finance is a financing activity for the procurement of goods based on consumer needs with payment in installments. In consumer financing, the parties must have good intentions for the smooth running of the agreement, but in practice the principle of good faith is often violated by the parties such as in the Decision of the Supreme Court of the Republic of Indonesia No. 1041 / K-Pdt.Sus-BPSK/2017 decides to grant a request from Martha Sitorus (consumer) with consideration of Article 2 of the UUPK and the principle of good faith, which in this case with the existence of the decision clearly has harmed PT. Toyota Astra Financial Service Medan (business actor) for consumer financing agreements. The problem studied is how the legal protection of business actors carried out by consumers in consumer financing and how the RI Decision No. 1041 / K-Pdt.Sus-BPSK/2017 towards legal protection of business actors carried out by consumers in consumer financing. The research method used is a normative method supported by interview data. The results of the writing illustrate that the business actor does not receive legal protection as stipulated in Article 6 letter (b) UUPK and in the Decision of the Supreme Court of the Republic of Indonesia No. 1041 / K-Pdt.Sus-BPSK/2017 The Panel of Judges is not right in making decisions.

scholarly journals OPTIMALISASI ASAS KEMANFAATAN HASIL LELANG EKSEKUSI DALAM PERSPEKTIF HUKUM INVESTASI

2021 ◽  
Vol 13 (1) ◽  
pp. 46
Author(s):  
Rusmin Wijaya ◽  
Achmad Jaka Santos Adiwijaya
Keyword(s):  
Research Method ◽  
Swot Analysis ◽  
Legal Protection ◽  
Third Parties ◽  
Good Faith ◽  
Online Auction ◽  
Legal Certainty ◽  
The Public ◽  
Legal Remedies ◽  
Police Report

The auction activity is the sale of goods open to the public with a written and / or verbal price quote that is increasing or decreasing to reach the highest price, which is preceded by an auction announcement. Auction activities can grow the country's economy, this activity can be optimized through investment. The research method used in this research is normative juridical, and the data are analyzed qualitatively using SWOT analysis. The results of this research there are opportunities and challenges where the Mortgage Certificate has an executorial power, the Regulation supports Investors / Buyers to Invest by buying auction assets, the online auction system aims to enable KPKNL to respond quickly, cheaply, efficiently every request of potential buyers / Investors without have to go through a long bureaucracy, buyers in good faith get legal protection. As for obstacles or challenges in optimizing auction results through investment, namely the presence of auction blockage before the auction, interference or intervention from third parties, and the existence of legal remedies in the form of lawsuits, resistance, rebuttal submitted by the Respondent / debtor at the Court for reasons that are too low or Police Report. With regard to investor legal certainty, namely obtaining legal certainty and legal protection for the purchase of auction assets at the KPKNL in accordance with the provisions stipulated in article 14 of Law Number 25 of 2007 concerning Investment.Keywords : Utility Principle; Auction; Invesment Law.

scholarly journals ONE FOR THE ASYLUM SEEKER Bula v Minister of Home Affairs (589/11) [2011] ZASCA 209

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
Darren Subramanien
Keyword(s):  
South Africa ◽  
Asylum Seekers ◽  
Legal Protection ◽  
The United States ◽  
African Continent ◽  
High Court ◽  
High Commissioner ◽  
The Supreme Court ◽  
The World ◽  
Court Of Appeal

South Africa has a large refugee population. In its 2010 report the United Nations High Commissioner for Refugees stated that South Africa received more than 222,000 new asylum requests. This made South Africa the number-one asylum destination in the world, ahead of the United States, Sweden, France, and Germany. People across the African continent go to South Africa to escapeviolence and poverty because it is a beacon of stability and economic growth on the continent. They arrive by bus and by foot after journeys that last for weeks from countries such as Ethiopia, Uganda, Burundi, Rwanda, Sudan, Somalia and Tanzania. Whenthey get close to the border, those without legal papers walk through the bush and swim across rivers to avoid being sent back. In a strongly-worded judgment, the Supreme Court of Appeal has affirmed the principles governing legal protection for asylum seekers in South Africa (SA) and censured a High Court acting judge for flouting the “fundamental rules of litigation”. Navsa JA went on to set out the approach that ought to have been followed. He said the laws governing asylum specifically required that a person who wanted to apply for asylum status should be allowed to apply, even if he had been arrested prior. 

scholarly journals ANALISIS PENYELUNDUPAN HUKUM KEPEMILIKAN HAK ATAS TANAH BAGI WARGA NEGARA ASING DENGAN CARA PELANGSUNGAN PERKAWINAN DENGAN WARGA NEGARA INDONESIA

PRANATA HUKUM ◽  
2017 ◽  
Vol 12 (2) ◽  
pp. 34-43
Author(s):  
RISTI DWI RAMASARI
Keyword(s):  
Legal Protection ◽  
Land Rights ◽  
Land Ownership ◽  
Civil Code ◽  
District Court ◽  
Foreign Nationals ◽  
High Court ◽  
Long Time ◽  
Ownership Of Land ◽  
Ownership Rights

Issues concerning the land can be prevented, at least to reduce the potential to avoid the cause, the problems are legal events, so the causes can be known and recognized by re-looking through existing legal ground view. From the problems in court, the process of settling the case takes a long time, sometimes for many years, it is because of the level of court that must be passed the District Court or Administrative Court, High Court, and Supreme Court.The problem in this paper is how the legal protection of land ownership rights for foreigners with the marriage with the citizens of Indonesia?egal protection of ownership of land rights for foreign nationals with marital sustainability with Indonesian citizens as a means of tenure of land ownership by foreign. By applying the nominee agreement, foreign nationals may control land as possessing land rights as Indonesian citizens. However, this agreement has not been regulated in Indonesia, especially the legal system of agreements set forth in the Civil Code (KUHPdt), so it is categorized into the category of legal smuggling of land ownership rights for foreigners. The legal effort to be taken in solving the problem of legal smuggling of land ownership rights for Foreigners with Marriage Sustainability with Indonesian Citizens is inseparable from the provisions of Article 1320 and Article 1338 of the Civil Code (KUHPdt).

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