KH friends must be familiar with the case where the borrower was angry when the debt was collected or the case of a house that was forced to be auctioned by the bank because he could not pay? In our society, debt and credit has become a common occurrence. In its development, debts and credits are now carried out not only to fulfill urgent needs but also to support economic activities in the business world. However, we often find conditions where debtors fail to fulfill their obligations in paying debts. There are also problems where the debtor is late in paying the debt, the debtor does not pay enough, until the debt is not paid at all. So this time, Kontrak Hukum will discuss how to resolve or efforts that can be made by creditors who experience losses due to debt and credit cases. Let’s immediately see the explanation below.
Overview of Accounts Payable
Debt and credit is an event where the creditor (the party providing the loan) will lend the debtor (the party receiving the loan) an amount of money that must be returned along with interest within an agreed period of time. Usually, debt and credit is always done with an agreement so that the parties in it are legally bound. In the Civil Code, debts and receivables can be made with a loan and borrowing agreement. Article 1754 of the Civil Code states that borrowing and lending is an agreement by which one party gives to the other party a certain amount of goods that are consumed due to use, with the condition that the latter party will return the same amount of the same kind and condition.
Default
However, in the practice of implementing lending and borrowing agreements, many events occur where the debtor fails to fulfill his obligations to pay debts to creditors. This situation can be considered a default or a situation where the debtor does not carry out his obligations on time / not in accordance with what was promised. Furthermore, default is regulated in Article 1238 of the Civil Code which states that the debtor is declared negligent / breach of promise if he is by warrant or by a similar deed (summons) or based on his own engagement is considered negligent because it has passed the specified time. Because default can occur due to an agreement arising between the creditor and the debtor, in debt and credit, case settlement can be resolved through a civil lawsuit. In order for the debtor to be declared in default of the debt and credit agreement, the creditor must first file a lawsuit with the court. If the court’s ruling grants the creditor’s claim, the debtor can only be declared in default. In cases of default that are resolved civilly, the debtor can be held legally responsible to pay compensation for the non-fulfillment of the performance. However, keep in mind that every claim including the compensation requested must be written completely and clearly in the lawsuit. This is because in civil lawsuits a principle called ultra petita applies or the judge in his decision may not impose a verdict beyond what is requested. So if the creditor does not demand compensation in the lawsuit, the verdict on the default case will not contain compensation.
Read also: Find out about defaults in agreements!
Apart from being resolved civilly, debtors who do not fulfill their obligations to pay debts can also be sued for criminal fraud / embezzlement. However, to sue the debtor criminally, the actions taken by the debtor must fulfill the elements stipulated in the Criminal Code. In addition, the creditor must also have strong evidence to submit because when there are elements that are not fulfilled and the evidence is insufficient, the debtor can be released from criminal liability and proven innocent. If the creditor reports the debtor’s actions to the police as embezzlement, according to Article 372 of the Criminal Code, the action must fulfill the elements of intentionally, unlawfully, possessing someone else’s goods, in this case the creditor’s debt/money, and the goods are controlled not by crime. If the creditor reports the debtor for fraud, the action must fulfill the elements in Article 378 of the Criminal Code, including:
- Aiming to benefit oneself unlawfully.
- Using a false name, false dignity, by deceit, or a series of lies.
- To induce another person to deliver goods to him, to give a debt or to cancel a debt.
For information, fraud and embezzlement are complaint offenses so that law enforcement can only process these criminal acts if the creditor decides to report the debtor to the police. If the debtor is proven to have committed the crime of embezzlement/fraud, the debtor can be sentenced to imprisonment for a maximum of 4 years.
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Now KH Friend, that’s an explanation of how to settle debt and credit cases. It would be nice if before giving a loan, the creditor makes a Loan Agreement. This is recommended to avoid the risks mentioned above.
