INDONESIA Trends and Developments Contributed by: Farih Romdoni Putra, Aditya Bagus Anggariady, Ghifar Hilmi and Andhika Kusumonegoro, KARNA
they have had a substantial impact on commercial court practice. It is important to note that SEMA, as a form of poli - cy regulation ( beleidsregel ), cannot be equated with legislation that has direct and general binding force. Therefore, a SEMA cannot automatically serve as a legal basis for adjudicating a case. Nevertheless, SEMA serves as a judicial guideline aimed at filling legal gaps within the judicial system. In this context, the Civil Chamber of the Supreme Court formulated guidance to address the scope of simple proof and the limits of guarantor liability in bankrupt - cy and PKPU cases, areas that have long generated inconsistent interpretations among judges in similar cases. Accordingly, these SEMAs now function as interpre - tive guidance for commercial judges, particularly in assessing the existence of simple evidence and defin - ing the extent of third party or personal guarantor lia - bility in bankruptcy proceedings. SEMA No 3 of 2023: developers do not meet the simple evidence requirements Through SEMA No 3 of 2023, the Supreme Court introduced a new direction in bankruptcy and PKPU law, specifically concerning property developers of apartments and/or condominium units. Previously, numerous bankruptcy and PKPU petitions were filed by unit buyers against developers due to delays in construction or handover, and some were even grant - ed by the court. Under Article 8 paragraph (4) of Law 37/2004, a bank - ruptcy petition may be granted if it can be simply proven that: • the debtor has at least two or more creditors; and • the debtor has failed to pay at least one due and payable debt. However, the concept of “simple evidence” has often been subject to debate, particularly in disputes between property developers and unit buyers. The relationship between the two is not always based on debt, but frequently involves complex contractual
issues, construction delays and the management of buyer funds. For example, in decision No 1349 K/Pdt.Sus- Pailit/2023 jo No 320/Pdt.Sus-PKPU/2022/PN.Niaga. Jkt.Pst, where the debtor was PT Sekar Artha Sentosa (PT SAS), the Supreme Court held that since PT SAS was a developer of apartment buildings with multiple units owned by different buyers under separate own - ership titles, the case could not be considered “simple proof” within the meaning of Article 8 paragraph (4) of Law 37/2004. Therefore, the PKPU Petition was rejected. Through SEMA No 3 of 2023, the Supreme Court clari - fied that the legal relationship between buyers and developers is inherently complex, encompassing not only contractual obligations but also issues of licens - ing, construction progress and third-party involve - ment, such as of banks or contractors. Accordingly, the Supreme Court explicitly states that: “Petition for bankruptcy or PKPU against developers of apartments and/or condominiums do not satisfy the criteria of simple evidence as stipulated in Article 8 paragraph (4) of Law 37/2004 on Bankruptcy and Suspension of Debt Payment Obligations”. This clarification serves to protect developers and investors from the misuse of PKPU as a form of com - mercial pressure, thereby enhancing project stability and investor confidence in the property sector. SEMA No 2 of 2024: limiting the liability of personal guarantors and third parties The next development came with SEMA No 2 of 2024, particularly Civil Chamber Formulation No 3, which reaffirms the limits of liability of guarantors ( borgtocht ) and third parties in bankruptcy and PKPU cases. The Supreme Court established two key principles: • a guarantor for a specific creditor is only responsi - ble for the debtor’s debt to that particular creditor and is not liable for all of the debtor’s obligations to other creditors; and
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