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Important Note Related to ActioPauliana in Bankruptcy Cases

“The basis of Actiopauliana lawsuit is creditor damages.”

In various bankruptcy cases can be found the existence of legal action by the creditors to nullify the debtor’s transactions, which is considered causing damage to the creditors. This action is known as actiopauliana.

Furthermore, there are three conditions in actiopauliana, which are:

  1. There is legal action conducted by debtor that is damaging the creditors,
  2. That action is not mandatory to be done, and
  3. It is conducted within a period of one year prior bankruptcy decision is declared.

Regarding parameter of “damaging the creditors” in a narrow sense if it is considered damaging the bankrupt estate.Debtor sells bankruptcy assets and can reduce the worth of bankruptcy. Finally, this will damage the right that is supposed to be received by other creditors, such as concurrent creditors.

Even so, there is an exception based on Article 41 (3) of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payments (“Bankruptcy Law”), in which bankrupt debtor may takes legal actions as long as that actions are not for personal interests, but to improve the company’s soundness. The rationalization of this exception is related with director’s obligations as regulated by Article 92 of Law No. 40 of 2007 on Limited Liability Company.

According to Former Supreme Court Judge, Susanti Adi Nugroho, an example of that exception is director’s actions to sell the company’s assets to pay off creditors’ debts. This action according to Susanti falls under action that is excluded by Article 41 of Bankruptcy Law. Moreover, if this sale and purchase can be done before bankrupt declaration, this action is considered beneficial to the parties due to that assets sale value will not drastically fall so that the creditor’s debts can be paid more.

Susanti also explains that this sale and purchase still can be performed even though that the asset has become security to a bank, even if bank has its own authority to sell goods that have been collateralized when the debtor has fallen into bankruptcy as if the bankruptcy does not happen. But this purchase is quite risky, because buying collateralized assets feared may not be re-conveyed. For that, Susanti said that usually the buyer is the bankrupt debtor’s trusted or closest people.

Sale of the Director’s Personal Assets

When asked what if the collateralized assets are not the company’s assets, but the director’s personal assets, is the director’s right to sells for the sake of paying off company’s debts still exist? Susanti answers that this assets are still the director’s personal assets. Even though has been collateralized to creditor, this director person may personally sell his assets. Because, based on company law, Limited Liability Company has its own wealth that is separate with the personal wealth of its director.

And if bankruptcy occurs, to this collateralized good and properties, the curator may not immediately take over control of collateralized properties. Curator must previously check the ownership of that collateralized assets. Though the director has collateralized his personal assets for the company’s benefit, curator cannot collect that assets and put it as bankruptcy estate.

Personal assets of director cannot be collected to be inserted into bankruptcy estate if a company goes bankrupt. Different with the frame of collateral law, if default occur then can be immediately executed (parate execution).

Included in the bankruptcy estate are only assets of the bankrupt company itself. Determination of company’s wealth assets and director’s personal wealth assets is shown from ownership certificate of each party’s wealth assets. Should be noted, this separation is a manifestation of limited nature of a Limited Liability Company, in which director and Limited Liability Company are separate legal person.

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