The Certificate of Building Use of Rights (Shgb) that has been out Duration of Ownership, with Execution of Sita Object Guarantee to Land

Journal of Environmental Treatment Techniques

2020, Volume 8, Issue 3, Pages: 1200-1208

J. Environ. Treat. Tech.

ISSN: 2309-1185

Journal web link: http://www.jett.dormaj.com

https://doi.org/10.47277/JETT/8(3)1208

The Certificate of Building Use of Rights (Shgb)

that has been out Duration of Ownership, with

Execution of Sita Object Guarantee to Land

Heru Soetanto Putra*, Abdul Gani Abdullah, Gunawan Djajaputra

Tarumanagara University, Indonesia

Received: 16/06/2020

Accepted: 16/07/2020

Published: 20/07/2020

Abstract

The length of the civil litigation process regarding land from the District Court, the High Court to the final level and legal

protection of the assets seized as well as proof of ownership of land or building rights are certificates. Based on these problems, it can

be analyzed the validity of the execution of the object of confiscation of land against the Land Use Certificate (SHGB) that has expired

and can be analyzed what steps must be taken in protecting the assets confiscated in a civil case through the Civil Procedure Code, the

Agrarian Regulation Indonesia, Indonesian Auction Regulations. Based on this analysis, the Confiscation, Execution and Building

Rights Auction activities that have expired are the conclusions of this study.

Keywords: Confiscated object, Certificate of building, Confiscation, Civil Engineering, Auction

execution. Based on the above, the authors are interested in

Introduction

conducting research on how the legal certainty of the

execution of the object seized collateral for land that has

expired.

One of the most important factors that are clearly

considered and regulated is land management. Because the

amount is limited and the need for land continues to increase,

making land has a high value seen from any perspective,

including the perspective of sociology, anthropology,

psychology, politics, military and economics. So high land

values because humans as social beings will defend their land

in any way. Various human interests that conflict with each

other relating to the control and ownership of land rights

cause many cases of land. Problems that occur in the

community relating to the control and ownership of land

rights that require the government to make legal rules in the

field of land (1). Written land law is realized by the existence

of Law Number 5 of 1960 concerning Basic Regulations on

Agrarian Principles (hereinafter referred to as UUPA). Since

the promulgation of the UUPA, the National Agrarian Law

has revoked regulations and decisions made during the Dutch

East Indies Government, including Agrarishe Wet Stb. 1870

No. 55 and Agrarische Besluit Stb. 1870 No.118 (1), (2). In

the UUPA, the objectives of the enactment of the UU are: (1)

Laying the foundations for the drafting of the National

Agrarian Law, which will be a tool to bring prosperity,

happiness and justice to the State and the people, especially

the peasants, in the context of society just and prosperous; (2)

Laying the groundwork for establishing the unity and

simplicity of land law; (3) Laying the groundwork to provide

legal certainty regarding land rights for the whole people. The

absence of strict and comprehensive regulations that

guarantee and provide legal certainty over the execution of a

confiscated object in the form of land when the validity period

expires. So in this paper the author wants to discuss in more

detail about the transfer of land rights as objects of

confiscation due to a court decision and legal certainty over its

1 Execution of confiscated objects against land

with a certificate of right to use for a building

that has exhausted

1) Confiscation Guarantee: Sita (Beslag) is a legal action

of a court for a Defendant's movable and immovable property

at the request of the Plaintiff to be monitored or taken to

ensure that the Plaintiff's claim / authority of the Plaintiff does

not become void. (1), (2), (3). Understanding foreclosure or

conservatoir beslag stipulated in Article 227 paragraph 1

HIR, Article 261 paragraph 1 RBg (2), (3): (a) Confiscate

debtor's goods as long as a decision has not been handed

down in the case; (b) the goal is that the goods are not

embezzled or sequestered by the Defendant during the trial

process, so that when the verdict is implemented, the

repayment of the debt demanded by the plaintiff can be

fulfilled by selling the confiscated goods.

2) Collateral Confiscation Process: Confiscation of the

property of the defendant can be carried out if there is a

concern that the defendant will divert his goods. Usually it

relates to lawsuits over payment of money or delivery of

goods. With the confiscated goods, the goods (after the

decision has legal status remains excecutorial beslag will be

auctioned if the Defendant does not implement the decision

and the auction will be used to pay the plaintiff.

Guarantee seizure is confiscation that is used as a

preparation for a decision to be carried out if it has permanent

legal force (1), (2), (3), (4), (5). This is done so that later

judicial proceedings and court decisions are not in vain. The

confiscation of preparations aims to protect the disputed

property (the treasured assets) from being sold or transferring

their rights to someone else. This seizure also aims to ensure

that the lawsuit is not empty (illusory), and maintain the

Corresponding author: Heru Soetanto Putra, Tarumanagara

University, Indonesia. E-mail: herusoetantoputra@gmail.com

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2020, Volume 8, Issue 3, Pages: 1200-1208

certainty of the object of execution. In the case between the

Tangerang Dharmaputra Foundation and Tjoa Sin Goan

discussed earlier, the parties in this case the Tangerang

Dharmaputra Foundation as a Legal Entity established based

on existing legal provisions in Indonesia and Tjoa Sin Goan as

Indonesian citizens have chosen to settle disputes in the legal

field. Civil litigation with civil litigation. Civil Law is a

regulation that regulates rights and obligations between

individuals in social life. In the civil court itself, the

settlement of the case is made in the form of a decision, the

decision can be distinguished between the decision and the

decision. The verdict is used as a term in a lawsuit case, in a

lawsuit the case ends with a decision (contentious). Whereas

the determination is used in a civil case (voluntary) (6).

Settlement of cases by the parties through a civil court is in

accordance with Article 1 paragraph (3) of the 1945

Constitution of the Republic of Indonesia which states that the

Republic of Indonesia is the State of Law. Therefore, any

problems that occur must be resolved by the provisions of

applicable law. That the Dharmaputra Foundation has filed a

civil suit against the law against Tjoa Sin Goan in the

Tangerang District Court with a register number dated August

free to judge whether the reasons have objective or subjective

qualities. In addition, the plaintiff is obliged to mention the

identity of the goods submitted in the confiscation guarantee.

Request for confiscation can be submitted simultaneously

with the lawsuit, or separately in a separate letter. In this case,

the Plaintiff filed a request for confiscation of collateral

incorporated in a lawsuit dated August 26, 2010 and was

registered Number: 475 / PDT.G / 2010 / PN.TNG and also

filed a separate application in the seizure request letter dated

March 9, 2010. Reason the plaintiff in the confiscation

request:

(a) That the Petitioner is the Plaintiff who has filed a lawsuit

against the law in the Tangerang District Court with Case

Number 475 / PDT.G / 2010 / PN.TNG against Tjoa Sin

Goan as the Defendant;

(b) That the Defendant could not account for student savings

ranging from kindergarten to high school level at the

Dharmaputra Educational Foundation in Tangerang

amounting to Rp. 153,864,200 (one hundred fifty three

million eight hundred sixty four thousand two hundred

rupiahs) held in the account of Bank Ekonomi Account

Number 2692970878 in the name of the Defendant;

remaining / difference in student activities ranging from

Kindergarten to High School Level at the Dharmaputra

Educational Foundation in Tangerang in the amount of

Rp.1,144,519,645 (one billion one hundred forty four

million five hundred and nineteen six hundred forty five

rupiah) which deposited in the Bank Ekonomi account

Account Number 2602070061 in the name of the

Defendant.

6, 2010. That the Dharmaputra Foundation in addition to

filing a collateral confiscation in a civil suit also filed a

separate seizure guarantee. Submitting request for

confiscation to guarantee the payment of compensation for

damages caused by the defendant, if the verdict of the panel of

judges accepts the suit and punishes the Defendant to make

the payment. This is in accordance with the provisions of

Article 226 and Article 227 HIR or Article 720 Rv or based

on SEMA No. 5 of 1975, confiscation and order of

confiscation, starting from the request or request of the

plaintiff. In confiscating collateral, the legal basis for

confiscation of property belonging to the defendant is Article

(d) That to ensure that the Plaintiff's claim does not become

useless, confiscation of the following objects should be

placed:

27 paragraph (1) HIR / Article 261 paragraph (1) R.bg. This

Land and buildings situated at Princess Island Block VII

VII 01 No. 42 Modernland, Tangerang City on behalf of the

Defendant , along with everything that is now / or later

established on that land which due to its nature and

designation or according to custom / legal regulations (Law)

is considered as a fixed object (immovable). In submitting an

application for confiscation, the Dharmaputra Foundation as

the Petitioner also submitted evidence of documents

supporting the arguments of the petition:

a. Photocopy of Deed of Establishment of the Dharmaputra

Tangerang Education Foundation in 1980 based on deed

number 05 of 1980 made before the Notary Mrs. Nuryani

Dwi, SH dated 7 February 1980, marked P-1A;

confiscation was carried out for both the movable and

immovable property of the defendant. These items are either

in the hands of the defendant or are being controlled by

another party. In terms of the case between the Foundation

Dharmaputra Tangerang as plaintiff against Tjoa Sin Goan as

Defendant objects belonging to the defendant presented for

sequestration is the form of the object is not moving, that's a

plot of land and house located at Princess Island VII Block

VII 01 No. 42 Modernland, City Tangerang belongs to

Defendant SHGB No. 651 / Cikokol . In the confiscation of

confiscated beslag , it must be the property of the defendant,

not belonging to a third party, because what can be used as

collateral in a case is only the property of the defendant as a

litigant. The main reasons for the seizure request according to

Article 227 HIR and Article 720 Rv, namely:

b. Photocopy of Deed of Amendment to the Articles of

Association of the Dharmaputra Education Number 114

dated October 7, 1994, marked P-1B;

(

a) There is a concern or suspicion that the defendant:

c. Photocopy of Deed of Adjustment to the amendment to

the Articles of Association with Notary Deed Agus

Santoso Suryadi, SH, MH, M.Sc., M.Kn.Number 02 dated

May 2, 2007, marked P-2;

) Looking for ways to embezzle or alienate their assets;

) This was done during the case inspection process.

(

b) The concern or suspicion must be objective and

objectively reasonable:

) The plaintiff must be able to show facts about the

d. Photocopy of student savings account account deposited

in the account of Bank Ekonomi Account Number

2602070878 in the name of the Defendant, marked P-3;

e. Photocopy of proof of returning student savings totaling

Rp. 392,348,200 (three hundred million ninety two

million three hundred and forty eight thousand two

hundred rupiah) in the form of a list of names of students

returning their savings with the date and amount of the

refund, marked (P-4); Which proves the return of student

savings.

defendant's steps to embezzle or alienate his property

during the inspection process;

2) At least the plaintiff can show an objective indication

of the existence of the defendant's efforts to eliminate or

alienate the goods in order to avoid a lawsuit.

(

c) There is a close relationship between the contents of the

lawsuit and the confiscation, which if the confiscation is

not carried out and the defendant misappropriates the

assets, resulting in losses to the Plaintiff.

f. Photocopy of proof of return of student savings by

Defendant Stage I amounting to Rp. 50,000,000 (fifty

million rupiahs) marked with P-5A;

The assessment of the reasons for the confiscation petition

is the authority of the judge examining the case. Judges are

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2020, Volume 8, Issue 3, Pages: 1200-1208

g. Photocopy of proof of returning student savings by

Defendant Phase II amounting to Rp. 188,484,000 (one

hundred eighty eight million four hundred eighty four

thousand rupiah), marked P-5B;

p. Photocopy of proof of subpoena II by the Plaintiff's

attorney so that the Defendant is immediately responsible

for the student savings and the activities of the student,

marked P-11B;

h. Photocopy of receipt of loan money from the coach to be

used to return the shortage of student savings to students

and / or parents of students: 1) Rp. 153,864,200 (one

hundred fifty three million eight hundred sixty four

thousand two hundred rupiah) with details of Rp.

q. Photocopy of summons evidence III by the Plaintiff's

attorney so that the Defendant is immediately responsible

for the student savings and the activities of the student,

marked P-11C;

After the panel of judges examining the case considering

the arguments and evidence as the basis for the petition, on

March 17, 2011 issued Determination Number: 475 / PDT.G /

2010 / PN.TNG, which decided as follows: (a) to grant the

claim of confiscation of the Plaintiff as mentioned above and

(b) ordered the Registrar / Bailiff of the Tangerang District

Court or if unable to be replaced by his authorized

representative accompanied by 2 (two) witnesses who

fulfilled the requirements as specified in Article 197 HIR to

confiscate (Conservatoir Beslag) the Defendant's assets in the

form of Land and Building located on Jalan Pulau Putri VII

block VII 01 No. 42 Modernland, Kota Tangerang-Banten on

behalf of the Defendant.

50,000,000 (one hundred and fifty million rupiah) on

April 16, 2009, marked as P-6A; 2) In the amount of Rp.

,130,100 (three million one hundred thirty thousand one

hundred rupiah) on August 3, 2009, marked P-6B; and 3)

Rp. 734,100 (seven hundred thirty four thousand one

hundred rupiah) on August 29, 2009, marked P-6C.

i. Photocopy of Defendant's statement letter will be

responsible for the shortage of student savings which

cannot be returned to students who according to the

Defendant is only Rp 140,000,000 (one hundred and forty

million rupiah), marked with P-7;

j. Photocopy of student savings accounts starting from

kindergarten, elementary, junior high, and high school

level which are stored in Bank Ekonomi Account Number

Determination of the judge who states that the petition for

confiscation is one of the forms of a judge in the form of an

interlocutory p judge containing orders that must be carried

out by the parties to the litigation to facilitate the judge

completing the examination of the case, before he decides the

final decision . The interim messenger does not stand alone,

but is a unity with the final decision on the subject matter.

That the judge on a request to make injunction before

dropping the final decision with regard to the subject matter.

3) Execution of Confiscated Collateral: according to Prof.

R. Subekti is the implementation of a decision that can no

longer be changed, voluntarily obeyed by the disputing party.

So in the meaning of words, the execution already implies that

the losing party inevitably must obey the decision voluntarily,

so the decision must be forced upon him with the help of the

general power. What is meant by public power is the police

even if necessary by the military (armed forces) (4). Whereas

in the case between the Tangerang Dharmaputra Foundation

as the Plaintiff and Tjoa Sin Goan as the Defendant despite

Determination Number 475 / PDT.G / 2010 / PN.TNG dated

March 17, 2011 concerning Confiscation of Guarantees.

Furthermore, it was strengthened by Decision Number 475 /

PDT.G / 2010 / PN.TNG dated June 13, 2011 which stated

that the Confiscation Guarantee was legal and valuable. The

process of execution of objects placed as collateral for the

implementation of the fulfillment of the decision is not

necessarily able to be carried out. This is because the

execution of confiscation of collateral is carried out, if the

Defendant does not implement the decision of a judge with

permanent legal force. In the case between the Tangerang

Dharmaputra Foundation as the Plaintiff and Tjoa Sin Goan as

the Defendant, even though the Plaintiff was won in the first

instance lawsuit, the Defendant filed an appeal against the

decision (7). The Defendant who did not accept the Tangerang

District Court Decision No: 475 / Pdt.G / 2010 / PN.TNG was

read on May 4, 2011 to take legal action by submitting an

appeal. The appeal was stated in the minutes of the appeal

appeal statement on the District Court Decision No: 475 /

Pdt.G / 2010 / PN.TNG on May 9, 2011 at the Banten High

Court. Whereas the legal remedies filed by the Defendant

formally met the requirements for filing an appeal, so that it

was appropriate that the Banten High Court accepted the

appeal from the Defendant. Whereas in this case, before the

case file was sent to the High Court, the parties had been

given the opportunity to examine each case in accordance

with the notice dated August 15, 2011 and August 19, 2011.

602070061 in the name of Defendant, marked P-8;

k. Photocopy of detailed evidence of income and

expenditure of activities from kindergarten, elementary,

junior high, and high school levels as follows: 1)

Photocopy of report on the receipt of money for the

activities of the head of the education and teaching section

of the 2005/2006 school year with the difference between

the income minus the expenditure of Rp. 559,365,000 -

Rp. 196,088,630 = Rp. 363,276,370 (three hundred sixty

three million two hundred seventy six thousand three

hundred seventy rupiahs), marked with P-9A, P-9A1 and

P -9A2; 2) Photocopy of the report on the receipt of

money for the activities of the head of the education and

teaching section for the 2006/2007 school year, with the

difference in revenue and deducted by expenditure of Rp.

555,120,000 - Rp. 270,011,590 = Rp. 285,108,410, - (two

hundred eighty-five million one hundred eight thousand

four hundred and ten rupiah), marked with P-9B; 3)

Photocopy of report on receipt of money for the activities

of the head of the education and teaching division for the

007/2008 academic year, with the difference in revenue

and deducted by expenditure of Rp. 563,350,000 - Rp.

63,073,585 = Rp. 200,276,415 (two hundred million two

hundred seventy-six thousand four hundred and fifteen

rupiah), marked P-9C; and 4) Photocopy of the report on

the receipt of money for the activities of the head of the

education and teaching division for the 2008/2009

academic year, with the difference in revenue and

deducted by expenditure of Rp. 522,50,000 - Rp.

266,646,550 = Rp. 295,858,450 (two hundred ninety five

million eight hundred fifty eight thousand four hundred

fifty rupiah), marked P-9D;

l. Photocopy of evidence of the letter of deactivation of the

Defendant as the Trustees of the Tangerang Dharmaputra

Education Foundation, marked P-10A;

m. Photocopy of evidence of the dismissal of the Defendant's

letter as the Trustee of the Dharmaputra Education

Foundation in Tangerang, marked P-10B;

n. Photocopy of receipt of the Tangerang Metro District

Police Assistant Investigator, marked with P-10C;

o. Photocopy of proof of subpoena I by the Plaintiff's

attorney so that the Defendant is immediately responsible

for student savings and activities of the student, marked P-

11A;

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2020, Volume 8, Issue 3, Pages: 1200-1208

However, both the Defendants originally did not submit an

Appeal and Comparative Memory from the Plaintiff also does

not file an Appeal Memory Counter.

a. The Cassation / Appellant / Defendant / Defendant is

declared to have committed an unlawful act resulting in a

loss to the Respondent / Appellant / Plaintiff's total

amount of Rp. 1,298,383,845 (one billion two hundred

million ninety eight million three hundred eighty three

thousand rupiah eight hundred forty-five rupiah);

b. The Cassation / Appellant / Defendant / Defendant is

sentenced to compensate the Complainant / Appellant /

Plaintiff for the illegal acts committed with a total amount

of Rp. 1,298,383,845 (one billion two hundred million

ninety eight million three hundred eighty three thousand

rupiah eight hundred forty-five rupiah); at the same time

and at the latest 8 (eight) days after the decision in this

case has permanent and definite legal force;

c. The Panel of Judges in their decision based on legal

considerations stated that a valid and valuable seizure was

carried out by a bailiff in the Tangerang District Court

over:

d. A plot of land and a house is located on the road: Pulau

Putri VII Block VII 01 No. 42 Modernland, Kota

Tangerang on behalf of Defendant SHGB No. 651 /

Cikokol;

That formally before the appeal is decided by the High

Court, the appeal can be revoked by the Applicant. If the case

file has not been sent to the Court of Appeals. Revocation

submitted to the district court concerned, then by the clerk

was made the deed revocation of the appeal request. The new

verdicts obtain permanent legal force after the appeal period

ends. At the time of the appeal level there was no revocation

by the appellant (3). The parties in this case did not file an

appeal memory or counter memory appeal. In addition, there

was no revocation of the appeal submitted by the appeal

applicant. The Panel of Judges examining the case continued

the examination of the case. Because there is no appeal or

counter memory of the appeal submitted by the parties, the

panel examined the appeal based on legal considerations in

the decision issued by the Tangerang District Court Judges

who examined the case. After the High Court has observed

that all of the legal facts and / or evidence have been properly

and correctly considered by the First-rate Judges according to

the law, therefore the legal considerations of the First-Level

Judges were taken over by the High Court and used as their

own considerations in deciding this case. . Based on these

considerations, the Court of Appeal is of the opinion that the

Tangerang District Court's decision dated May 4, 2011

Number: 475 / Pdt.G / 2010 / PN.TNG for which an appeal

was appealed may be retained, therefore it must be upheld.

Whereas the verdict decided by the Panel of Judges

examining the case in Decision Number 74 / Pdt / 2011 /

PT.Btn dated October 27, 2011, namely: (a) Receive an

appeal from the Defendant originally Defendant; (b) To affirm

the Tangerang District Court Decision dated May 4, 2011

Number 475 / Pdt.G / 2010 / PN.TNG for which the appeal

was filed; (c) Punishing the Appellant Previously the

Defendant to pay the costs of this case in the two court levels,

which in the level of appeal was Rp. 150,000 (one hundred

fifty thousand rupiah).

e. Punishing the Cassation

/ Comparator / Defendant

Applicant to pay the costs incurred in the case, which until

now has been calculated as Rp. 1,177,000 (one million

one hundred seventy-seven thousand rupiah), at the First

District Court;

f. Sentencing the Kasai / Appellant / Defendant to pay this

case fee in the Court of Appeals, which in the appellate

rate is Rp.150,000 (one hundred and fifty thousand

rupiah).

g. Punishing the Cassation Appellant / Appellant / Defendant

to pay the court fee in this Cassation Decision amounting

to Rp. 500,000 (five hundred thousand rupiah).

After the cassation decision is notified to the parties to the

litigation to be implemented immediately. However, it was

not carried out voluntarily by the Defendant / Appellant /

Appellant of Cassation for the Decision on Cassation Number:

823 K / PDT / 2012. Therefore sequestration that has been

placed on the object land and buildings in Housing

Modernland Jalan Putri Island VII VII 01 Block 42, Village

Coconut Beautiful, District of Tangerang, Tangerang City,

transformed into Sita execution which means it can be run

directly without the need for the establishment of judges back.

Decision Number 74 / Pdt / 2011 / PT.Btn has been

notified to the original Appellant Defendant on November 14,

011, then on November 25, 2011 verbally stated the appeal

request, as evidently in the deed of appeal application

Number: 475 / Pdt.G / 2010 / PN. TNG and accompanied by

Cassation Memory on December 9, 2011. The Respondent of

Cassation / Plaintiff / Compared has submitted an answer to

the cassation memory dated January 10, 2012. The Supreme

Court in checking a case that after looking at the arguments

put forward by the parties to convince the judges who hear

cases and has done legal considerations. So that on 12

September 2012 makes decision n indicated in the Decision

No. 823 K / PDT / 2012 in the verdict as follows: (a) Refuse

an appeal request from the Appellant: Tjoa Sin Goan; and (b)

Punish the Cassation Applicant / Plaintiff to pay the court fee

in this cassation rate of Rp. 500,000 (five hundred thousand

rupiah). The cassation decision on the case was then notified

to the Plaintiff / Respondent of Cassation on May 2, 2013 and

to the Defendant / Cassation Appellant on 8 May 2013. That

as of the issuance and notification of the Supreme Court's

Appeals in the case between the Dharmaputra Foundation

against Tjoa Sin Goan, then the examination of the case of tort

against the law has permanent legal force, so it is obligatory to

carry out immediately. Based on the Cassation Decision

Number: 823 K / PDT / 2012, the Defendant is obliged to

implement the contents of Tangerang District Court's

Decision Number 475 / PDT.G / 2010 / PN. TNG Jo. Banten

District Court Decision Number: 74 / PDT / 2011 / PT.BTN

among them, as follows:

Auction of transfer of land rights in auction

for the certificate of building use rights that are

exhausted

.1 Legitimate transfer of rights

Auction includes a special agreement, namely a named

agreement, has its own name, namely auction. Auction is an

activity of selling agreement as it is also regulated in the Civil

Code. The elements contained in the sale and purchase are

also contained in the auction, namely: 1) the existence of legal

subjects, namely sellers and buyers; 2) there is an agreement,

namely an agreement between the seller and the buyer

regarding the price; and 3) the rights and obligations that arise

for the parties, namely between the seller and the buyer. The

most essential thing in auctions and buying and selling is the

delivery of goods which become objects in the sale and

purchase or auction and payment of the price of the object.

Basically the auction is the sale of goods to the public or in

public. Because of that, the auction is often referred to as

general sales. The fundamental difference between auctions

and buying and selling is found in the implementation

process, namely where the buying and selling process is

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