by Dharma Na Gara

Hukum Perdata-Civil LawMay 7, 20220 comments 0 Likes

Actio Pauliana.

To protect the rights of creditors claims, Article 1341 of the Indonesian Civil Code authorizes each creditor to in certain circumstances can file a cancellation of the debtor’s actions that are not required which harm the creditors.

The lawsuit based on article 1341 is called actio pauliana with the following conditions:

1. The act as stated in Article 1341 of the Civil Code must be a legal act.

For real actions, such as damage that results in a decrease in the debtor’s wealth or acts against the law, the creditor cannot ask for cancellation.

2. It is not an obligatory legal act.

What is meant by legal actions that are not required are legal actions that are not carried out because of obligations caused by law or approval. Payment of debts that have been collected is a legal act which is the obligation of the debtor so that such payments cannot be contested by other creditors, even if the payment to one creditor is detrimental to other creditors.

3. Only aggrieved creditors have the rights to apply for cancellation.

The provisions of the law that stipulate that each creditor can apply for the cancellation of actions that are detrimental to creditors can give the impression that the loss must affect all creditors. However, what the law actually means is that a creditor who is suing under Article 1341 of the Civil Code must be a creditor who is harmed by legal actions of the debtor.

4. Debtors and third parties must know that their actions are detrimental to creditors.

The word “knowing” that the act is detrimental to the creditor must be measured objectively, it must be interpreted that the debtor and the person with whom he/she has committed the act should clearly understand that his/her actions are detrimental to the creditor. therefore, not only the debtor concerned but also the parties who have a relationship with the debtor must know.

Source:

R. Setiawan, S.H., Pokok-pokok Hukum Perikatan, 1978, Binacipta, Bandung.