Parate Execution in Disputes Settlement of Financing Contract with Guaranteed Mortgage on Sharia Banking Practices
Nurul Musjtari, Dewi
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ABSTRACT Disputes settlement of financing contract with guaranteed mortgage after the decision of the Constitutional Court No. 93/PUU-X/2012 requires a follow-up of the existing verdict by conducting execution. Execution implies a forced attempt to realize rights and/or sanctions. There are three kinds of executions: the execution of the will of the parties, the parate execution and the fiat execution. In practice, there are still obstacles in the implementation of parate execution. Based on the phenomenon, the purpose of this research is to know the legal basis and parate execution mechanism in the dispute settlement of the financing contract with the guaranteed mortgage on sharia banking practices. The theory used to analyze in this research is Eggens’ Simplified Execution Theory and Concept Effectiveness of Law Enforcement according Soerjono Soekanto. This research is socio-legal research, using qualitative analysis and philosophical and sociological approach. Primary data was obtained from the results of research in PA Yogyakarta, PA Sleman, PA Bantul, PA Gunung Kidul, PA Temanggung, PA Bandung, PA Purbalingga and Supreme Court. As for the results of the research, it was found that the parate execution in the disputes settlement of the financing contract with the guaranteed mortgage on sharia banking practice is based on Surah al-Baqarah verses 280, 282 and 283, Law No. 21 year 2008, Article 54 of Law No. 7 year 1989 in junction with Law No. 3 year 2006 in junction with Law No. 50 year 2009, Article 20 paragraph (1 a) in junction with Article 6 of Law No. 4 year 1996, Article 1121, 1178, 1241 Civil Code, PERMA No. 2 year 2008. The mechanism of execution of guaranteed mortgage is executed by the Shahibul Maal (creditor/sharia bank) without having to perform the fiat execution to the religious court but can be executed in cooperation with the State Auction Office (SAO).