KEPASTIAN HUKUM KEPAILITAN BAGI PENGEMBANG ATAU DEVELOPER APARTMENT DAN RUMAH SUSUN PASCA TERBITNYA SEMA NOMOR 3 TAHUN 2023

Abstract

SEMA No. 3 Year 2023 states that bankruptcy and PKPU petitions against developers of apartments and/or flats do not qualify as simple proof as referred to in the provisions of Article 8 paragraph (4) of Law No. 37 Year 2004 on Bankruptcy and Suspension of Debt Payment Obligations. If then SEMA No. 3 of 2023 states that property/developers cannot be petitioned for bankruptcy/PKPU, it obstructs justice for debtors and creditors against restrictions on bankruptcy petitions against apartment developers. The question that arises is whether the ratio legis in simple proof as referred to in the provisions of Article 8 paragraph (4) of Law No. 37 of 2004 concerning Bankruptcy and PKPU. This research uses normative research that utilizes statute approach and conceptual approach. The result of this research is that the SEMA does not have the power to cancel the Law, because the position of the SEMA itself is not general in nature, so that the SEMA itself is not a statutory regulation that binds directly to the community. Judges still need to apply the freedom of judge in deciding a case with objective considerations. It can be concluded that this research shows that with the issuance of SEMA No. 3 of 2023 there is no clarity on what legal mechanisms consumers can take that are more efficient than PKPU and bankruptcy. If certain companies such as developer companies cannot be petitioned for bankruptcy or PKPU, it should be regulated in the form of regulations at the level of the Law or revise the Bankruptcy Law.