Escolar Documentos
Profissional Documentos
Cultura Documentos
TELKOMSEL
BASED ON DECISION NO. 704K / PDT.SUS / 2012
A. Background
Kisruh Telkomsel with PT Prima Jaya started from the discontinuation of Prima
Card prepaid product from June 2012 last. PT Prima as a partner filed a bankruptcy
lawsuit against Telkomsel as it was deemed to have matured debt for the provision
of Prima card. The request for bankruptcy commenced on an agreement in July 2011
that PT Prima Jaya is entitled to distribute the Prima Card of refill vouchers and
Prime Card prepaid cards designed for national athletes for two years.
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about Rp 5 billion, compared with a very large corporate income with assets of
hundreds of trillion rupiah.
To strengthen the argument of the verdict, the judges cited the opinion of Sutan
Remy Sjahdeini expert. This bankruptcy law expert in the trial last week said the
Bankruptcy and PKPU Law does not regulate the size of the debt. Thus, it can be
interpreted that the Law of Bankruptcy and PKPU does not matter if the assets of a
company turned out to be larger than the debt.
Related to the minimal element there are two creditors, the assembly said this
element is fulfilled. Although Telkomsel has proven evidence of debt repayment to
PT Extent Media Indonesia, the judges rejected the evidence under Article 1868 of
the Criminal Code. You see, the evidence submitted by Telkomsel is proof of
photocopy, not original proof of payment. Meanwhile, Article 1868 of the Criminal
Code requires that the strength of a document or written evidence lies with the
original deed.
That the meaning of the debt itself extensively can mean any obligation which
can be expressed in the amount of money or not both directly or indirectly which
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must be fulfilled by the Borrower. That in this case, the Purchase Order issued by
PT Prima Jaya Informatika is not ignored by PT Telkomsel which causes PT Prima
Jaya Informatika means that this is a debt from PT Telkomsel to be fulfilled.
In the verdict the Supreme Court is of the opinion that judex facti has wrongly
applied the law, because whether it is true that the debts of the Respondent to the
applicant in this case require proof that is not simple because the applicant's
argument regarding the existence of the applicant's debts to the petitioner was
denied by the requested party, The provisions stipulated in Article 8 paragraph (4) of
Law No.37 of 2004 concerning Bankruptcy and Delay of Obligations of Debt
Payers. Therefore in this case the truth of the existence of the debtored debtor's debt
to the bankruptcy applicant requires the existence of a complicated proof, and not
simple so that the petition of bankruptcy from the applicant does not meet the
provisions of Article 8 paragraph (4) of Law no. 37 of 2004 mentioned above so that
the settlement must be made through the District Court and not to the Commercial
Court
B. Problem
1. How the position of PT. Telkomsel as Debtor and PT. Prima Jaya
Informatika as Creditor based on Decision No. 704K / Pdt.Sus / 2012?
C. Discussion
Pengertian Kepailitan
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whether voluntary by the Debitor itself, or at the request of a third party (other
than the Debitor), an application for a bankruptcy statement to the Court.
In Article 1 paragraph (1) of Law Number 37 Year 2004 concerning Bankruptcy
and Postponement of Debt Payment Obligation stated that:
“Kepailitan adalah sita umum atas semua kekayaan Debitor Pailit yang
pengurusan dan pemberesannya dilakukan oleh Kurator di bawah pengawasan
Hakim Pengawas sebagaimana diatur dalam Undang-Undang ini.”
The bankruptcy law embraces the principle of debt as set forth in the Civil Code,
namely that debt in bankruptcy is a form of obligation to fulfill achievement in
an engagement. In the case of a person for his actions or not doing something, it
is his duty to pay compensation, to give something or not to give something then
at that time he has a debt, has a duty to perform. So debt is equal to achievement
in the engagement. Debt refers to obligations in civil law. Liability or debt may
arise either from the agreement or from the law.
Requirements for bankruptcy application as regulated in Article 2 paragraph (1)
of Law no. 37 Year 2004 Concerning Bankruptcy and Postponement of
Obligation of Debt Payment. In relation to the provisions of Article 2 paragraph
(1) of UUK-PKPU, it is necessary to understand well what is meant by "debt".
According to Article 1 Sub-Article 6 of UUK-PKPU:
“Utang adalah kewajiban yang dinyatakan atau dapat dinyatakan dalam jumlah
uang baik dalam mata uang Indonesia maupun mata uang asing, baik secara
langsung maupun yang akan timbul di kemudian hari atau kontinjen, yang
timbul karena perjanjian atau Undang-undang dan yang wajib dipenuhi oleh
debitor dan bila tidak dipenuhi memberi hak kepada kreditor untuk mendapat
pemenuhannya dari harta kekayaan debitor.”
following matters:
even if such obligations do not arise from debt agreements or lending and borrow
money can be classified as debt under the law of bankruptcy? In other words, is it
only the obligation to pay the amount of debt arising out of debt agreements that can
be classified as debt, or include any obligation to pay the money for which the
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obligation arises for any reason whatsoever, whether arising out of any agreement
money, but the non-fulfillment of the obligation can cause money losses for the
party to whom the obligation must be fulfilled, can also be classified as debt under
something, that is, as meant in Article 1234 of the Civil Code, even if it has not
The definition of the debt was not previously contained in Law No.4 of 1998,
the law before the enactment of Law N0.37 Year 2004, or does not provide a
Paragraph (1) of Law No.4 of 1998 only states that "Debt not paid by debtors as
referred to in this provision, is the principal debt or interest." Because the law does
not define what is meant by debt, There arises a cross-over of what is covered in
terms of debt. From court decisions on bankruptcy cases it is obvious that there is a
UUKPKPU states that the Debtor having 2 or more Creditors and not paying off at
least one debt that has fallen and can be collected, declared bankrupt
A court decision, either on his own request or at the request of one or more of
his Creditor. Taking note of the above provisions, it is known that the conditions for
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2. Debtors do not pay at least 1 debt
Article 1 Paragraph (1) of the UUK stipulates that a Debtor who has 2 or more
Creditors and does not pay at least one debt that has been matured and may be
2, either on his own request, At the request of one or more of its Creditor.
Assessed from the normative perspective, the purpose of bankruptcy and PKPU
is essentially to avoid the seizure of the Debitor's property, so that the Creditors
holders of material security rights by selling the Debtor's property regardless of the
interests of Debitor or other Creditors and to avoid any fraud committed by either
perspective the purpose of bankruptcy and PKPU is oriented to the aspects and
The Bankruptcy Law provides for several provisions which constitute the
realization of the principle of equilibrium, ie on the one hand, there are provisions
that can prevent the abuse of institutions and bankruptcy institutions by dishonest
Debtors, on the other hand there are provisions that may prevent the abuse of
institutions and institutions of bankruptcy by the Creditor Who are not in good faith.
Under this bankruptcy law, there is a provision that allows prospective Debtor
companies to continue.
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3. Principle of Justice
bankruptcy can meet the sense of justice for the parties concerned. The principle of
payment of their respective bills against the Debtor, with no regard to other
creditors.
4. Principle of Integration
The principle of integration in the Bankruptcy Law implies that the formal legal
system and its material law constitute a unified whole of the civil law system and
the law of a national civil event. In addition to these principles, the Act on
Bankruptcy and PKPU also regulates some new topics, namely First, so as not to
result in various interpretations in the Bankruptcy and PKPU Law concerning the
application and PKPU including the provision of a definite time frame for the
According to Bankruptcy code the parties involved in the bankruptcy process are
as follows:
1. The Debtor (Debtor) is the party who voluntarily apply for bankruptcy or
collateral to assets of Debitor or Creditor who has the right to collect with the value
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of calculation if the Debtor is bankrupt in value smaller than the Debtor's asset is
person or an entity
5. United States trustees are officials of the federal government who have the
7. Debtor in possesion is none other Debtor who in his business activity is still
eligible to proceed, need not be declared bankrupt or insolvency but still given time
8. The Examiner is the designated party to inspect and appraise the property of
the Debtor.
Article 2 paragraph (1), (2), (3), (4), (5) UUKPKPU indicates that the parties
2. Creditors or creditors
interest.
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According to Article 1 paragraph (1), (2), (3), (4) UUK that may file a
securities company.
PT. Telkomsel sebagai Debitor dan PT. Prima Jaya Informatika sebagai Kreditor
berdasarkan Putusan No. 704K/Pdt.Sus/2012
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able to sue his bills in court. Therefore, what is known as a natural bond
(natuurlijke verbintenis) can not be the basis for filing a petition for bankruptcy.
The purpose of the application is as a form of compliance with the publicity
principle of being unable to pay from a Debtor. Without such a request to the
Court, the interested third party will never know the situation of being unable to
pay from the Debtor. This situation will then be reinforced by a decision of a
bankruptcy declaration by a Judge of the Court, whether it is a decision granting
or denying the petition filed.
This is because the number of decisions of Bankruptcy Commercial Court which
was canceled at the level of Supreme Court Cassation. The Supreme Court
Judge has the consideration that in examining the existence of debt can not be
examined or proven simply. This resulted in legal uncertainty, at the level of
Commercial Court was terminated bankrupt but at the appeal level in the
Supreme Court the bankruptcy decision was canceled.
As we know, PT Telekomunikasi Selular (Telkomsel) is a very healthy and well
managed telecommunication company that keeps making profits. It can be said
that the company is a company whose financial condition is still solvent.
Because based on the fact that PT Telkomsel paid a tax of Rp 8.7 trillion to the
state treasury, making it as one of the significant tax contributors in Indonesia.
Telkom's debt value is only slightly from Telkomsel's total net income in 2011
which amounted to Rp 12.8 trillion. In addition, the debt is even arguably
considering the assets of a subsidiary of Telkom which amounted to Rp 58.7
trillion. However, in the case of bankruptcy, the judges did not see the size of the
debt in the case. The guideline, is the presence of debts that are due and can be
collected. In addition, the panel of judges observes whether the requested party
has debts that are due and can be billed to two or more creditors. So also in the
proof of the existence of the debt must also be simple as stated in Article 8
paragraph 4 of Law no. 37 Year 2004 Concerning Bankruptcy and
Postponement of Obligations of Debt Payers:
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“Permohonan pernyataan pailit harus dikabulkan apabila terdapat fakta atau
keadaan yang terbukti secara sederhana bahwa persyaratan untuk dinyatakan
pailit sebagaimana dimaksud dalam pasal 2 ayat (1) telah dipenuhi.”
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Where in this case PT Telkomsel is treated or considered as a debtor by the
Panel of Judges of Commercial Court is a false and reversed interpretation. In
the cooperation agreement between PT Telkomsel and PT.Prima Jaya
Informatika, basically must be seen first its legal position in the cooperation
agreement between who as the actual Creditors and who as the actual Debtor.
According to Article 1 Figures (3) of the Act
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option other than Shall comply with the Regulations in the cooperation agreement.
The Panel of Judges of the Commercial Court has been wrong in determining which
party became the Debtor and the Creditor causing misunderstanding of who own the
debt itself because of the fact that there is PT Prima Jaya Informatika has not
fulfilled payment from Purcahse Order before that made PT Telkomsel not Forward
the second Purchase Order which in this case is a proof of debt submitted by PT
Prima Jaya Informatika. The new bankruptcy law should be used if there is a debt
dispute whose value can already be categorized as bankrupting the company.
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refers to the provisions of the law, especially on this issue. But the Panel of Judges
should also have full independence in interpreting the laws and regulations.
The consideration of this assembly is also attributed to Article 1458 of the Civil
Code which states, "The buying and selling shall be deemed to have occurred
between the two parties, at which point the men reached agreement on the material
and the price, even though the material has not been delivered, nor has the price
been paid."
Related to this matter, the panel of judges is of the opinion that both parties have
agreed to make a sale or purchase of goods. Against this phrase "goods", the
assembly is of the opinion that goods are something that can be stated with money
as referred to in Article 1 paragraph (6) of Law no. 37 Year 2004 concerning
Bankruptcy and Suspension of Payment Obligation (PKPU). Hence, the judges
concluded the voucher could be called with debt. Furthermore, the interpretation of
the assembly against Article 1458 of the Civil Code is the obligation of one party to
have arisen at the time of agreement even if the item has not been paid or submitted.
In one of the principles of the Bankruptcy Act in general, it expressly states that
the "decree of bankruptcy declaration can not be imposed on the solvent debtor."
This attitude is the attitude of Faillissement verordening (Fv) as stated in Article 1
paragraph (1) before being amended By Perpu No. 1 of 1998, with the following
sounds: "Any debtor who is unable to remain in a position to stop paying his debts,
with a judge's verdict, either at his own request or at the request of one or more
other sovereign parties (his creditors ), Declared in a state of bankruptcy.
"Unfortunately this principle is not applied in the current Bankruptcy Law, namely
Law no. 37 of 2004.
The absence of the rules of bankruptcy requirements concerning insolvent
debtors in Law no. 37 of 2004, is in fact also contrary to the principle of bankruptcy
Act itself. This principle is the principle of "encouraging investment and business".
The case of Telkomsel is precisely a bad precedent to the investment climate in
Indonesia and foreign investors will be increasingly reluctant to invest here.
However, foreign loans will still be needed as a source of funds to finance national
development due to limited domestic funds. In the end the foreigners will assume
that the law of bankruptcy in the State of Indonesia is not globally accepted (global
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acceptable). Therefore, Indonesia must be firm in enforcing the rule of law so that
foreign investors get security assurance on the capital that has been invested in
Indonesia.
In fact it is often found in bankruptcy debtor proceedings that have been proven
to have more than two creditors and one of the debts is due, but can not be
bankrupted under the pretext that debtor debts are debts that are not simple
examination and are not the authority of the Court Commerce because the subject of
the dispute must be proven in the District Court.
Sutan Remy stated that the establishment of the panel of judges in the case of
bankruptcy mentioned above should be questioned. Article 8 Paragraph (4) of the
UUKPKPU shall not be construed to mean that if the petition of a declaration of
bankruptcy does not contain facts or circumstances proven simply, or in other
words, the facts and circumstances can not be proven simply, resulting in the case
being unable to be examined and decided by Commercial Court. If Article 8
Paragraph (4) of UUKPKPU is interpreted as such, then it means that in the case of
non-simplified debts examination and the facts proof and the circumstances can not
be done simply, it becomes impossible for the creditors to apply for bankruptcy
against the Debtor .
Regarding the latter, unpaid debts, a regulation that can be used quickly, openly
and effectively to provide an opportunity for parties to pursue a fair settlement. Very
complex debts are used as reasons for the Judge to prevent the debtor from being
bankrupt, and can not be examined in the Commercial Court as a bankruptcy case as
it is the authority of the District Court. This reason is not something that is true in
the trial. The panel of judges should check first, and not quickly in concluding that
complex debt cases are not the authority of the Commercial Court.
According to Victorianus M.H Randa Puang, the constraints or obstacles
encountered in the application of simple proof in the imposition of bankruptcy
decisions tend to be due to human resources in this case are the judges are less
adequate. A minimum of knowledge of the judges of the Commercial Court,
resulting in the lack of uniformity of opinion in deciding a case and defining
something, such as understanding of debt, understanding of debt maturity,
understanding of the necessity of two creditors, and so forth.
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E. Advice
The purpose of the Bankruptcy Act which was originally to liquidate the debtor's
property for the benefit of its creditors, in its development has changed. The
Bankruptcy Act becomes an important instrument to reorganize the debtor's
business when experiencing financial difficulties. This applies to corporate
insolvency. A series of developments in the Bankruptcy Act in the United States,
Britain, Australia and Germany show the same change, which leads to a process of
maximizing the value of on-going business and maintaining the social benefits of
business existence, as well as increasing bills owned by creditors .
The Judge (Commercial Court) must not only prioritize legal certainty by simply
referring to the requirement of bankruptcy petition in Article 2 paragraph (1) of
UUKPKPU, but also to consider the proportionate application of the principle of
legal certainty, justice and benefit by harmonizing or balancing the three elements
within law enforcement. The principle of legal certainty is concluded in the
application of the requirements for bankruptcy petition in Article 2 paragraph (1) of
UUKPKPU. The principle of justice in law enforcement is reflected in the principle
of fairness in court case examination, that the creditor's protection should not be
detrimental to the interests of the debtor. Therefore, the principle of justice for the
interests of both parties is strongly emphasized in UUKPKU, while the principle of
benefit can be seen as the principle of bankruptcy as the last (Ultimum remidium)
debt settlement and principle may be known by the public (open). The judge should
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see other parameters or considerations regarding the existence of debt arising
between the Debtor and the Creditor in order to provide legal certainty concerning
the application of the simple evidentiary element itself. This certainty lies in which
the judge looks at the interests and rights of the Debtor. The judge shall not be
bound by the evidence submitted by the applicants for bankruptcy by excluding the
reasons for the petition of bankruptcy. The panel of judges shall divide the burden
of proof on the basis of equality of the parties. Therefore, the judge must burden
the parties with proof in a balanced or proper manner.
The bankruptcy decision imposed by the commercial court and the Supreme
Court decision of Supreme Court must be made in no more than 60 days, whereas
the decision of the request for review must be made within 30 days. This time limit
provision is aimed at ensuring bankruptcy procedures in court are executed more
quickly. Law no. 37 Year 2004 Concerning Bankruptcy and Suspension of
Payment Obligations Debt does not provide an opportunity for unsatisfied parties
to the bankruptcy decision imposed by the commercial court to file an appeal to the
high court. This is different from the settlement of civil cases (which at that time
included bankruptcy cases) that occurred in the district court. Dissatisfied parties to
the decision of the state court bankruptcy may file an appeal, cassation or judicial
review. There is no provision to provide an appeal legal action in the RI Law no. 37
Year 2004 Concerning Bankruptcy and Suspension of Payment Obligations This
debt aims to fulfill the principle of settlement of bankruptcy cases quickly.
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