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126 J.L. Pol'y & Globalization 1 (2022)

handle is hein.journals/jawpglob126 and id is 1 raw text is: Journal of Law, Policy and Globalization wwwate.-1 ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.126, 2022 15 Legal Values Contained in Society as Exit Emergencies in the Deciding Ratio Process that Produces Judge Made Law in Bankruptcy Law Dr. Ivida Dewi Amrih Suci S.H., M.H., M.Kn. Faculty of Law, Janabrada University Yogyakarta Prof. Dr. Herowati Poesoko S.H., M.H. Faculty of Law, Jember University Dr. Murjiyanto S.H., M.Kn. Faculty of Law, Janabrada University Yogyakarta Dr. Aries Harianto, S.H.,M.H. Faculty of Law, Jember University Email of corresponding author: dr.aries99@gmail.com Abstract Bankruptcy law in Indonesia has special characteristics compared to other fields of law. Article 2 Paragraph (1) is the basis for the bankruptcy decision, and the decision is an immediate decision (uitvoorraad bij voorraad). So that when a bankruptcy decision occurs, the curator supervised by the supervisory judge immediately executes the bankruptcy estate for management and/or settlement of the bankruptcy estate. The simple requirements of Article 2 Paragraph (1) apply to debtors who are solvent or not. If the debtor is no longer solvent, the bankruptcy law can be applied as a solution by the debtor and creditor. However, if the solvent debtor, namely the assets of the company/individual, is much larger than the debt, other problems will arise. Due to the fact that, the bankruptcy law in Indonesia is not required for a solvency test before the application, therefore it will be very detrimental to the debtor and creditors, because the bankruptcy requirements are very simple, and the bankruptcy law appears to be scary for the solvent debtors.Debtors' fear of the application of bankruptcy law should not occur if they interpret Article 8 Paragraph (6) letter a which states The court decision as referred to in Paragraph (5) must also contain; a. certain articles of the relevant laws and regulations and/or unwritten sources of law used as the basis for adjudicating.... With the enactment of Article 8 Paragraph (6) letter a opens an opportunity for solvent debtors to avoid bankruptcy. Article 8 Paragraph (6) can be used as an emergency exit for a judge made law process. Therefore, the researcher analyzes the values of justice in society as an emergency exit in the process of judge made law, if the debtor is still solvent. The problems raised in this study are: how do judges in their legal considerations (ratio decidendi) make judge made law as an emergency exit for debtor.This research belongs to a normative legal research. The researcher applies some theories, namely the theory of legal objectives that originate from the three general teachings of Gustav Radbruch and the theory of the legal system of Kees Schuit. The approaches used are the conceptual approach, the historical approach, the statutory approach, the comparative law approach and the case approach. This research is expected to have prescriptive value for the legal world in the future, especially bankruptcy law. DOI: 10.7176/JLPG/81-01 Publication date: November 30th 2022 I. Background Bankruptcy law, in its regulation, contains formal law which is coercive (dwingendrecht). This coercive law cannot be deviated since it is based on legal certainty, namely the guarantee of security provided by the state for justice seekers (justiabelen), where the sense of justice (principle of justice) is the goal of the law itself. Likewise, the law must also be benegicial for the justiabelen, the expediency and legal certainty are instruments of justice. It is in accordance with the theory of 3 (three) general teachings of Gustav Radbruch and his shifting teachings on certainty, expediency and justice.1 These three theories is also related to the theory of the legal system2 namely the ideal element, law is about meanings; operational elements, the law is about the authority in the law itself; and the actual element, the law in the actual setting; How this law can be applied fairly in society is contained in court decisions that have permanent legal force (Inkracht Van Gewisjde). The coercive nature of the formal law in bankruptcy law (dwingendrecht) is obviously illustrated in Article 1 Ivida Dewi Amrih Suci, Hukum Kepailitan KarakteristikRenvoi Prosedur dalam Perkara Kepailitan, Laksbang Justitia, Yogyakarta, 2020, pp. 14-16 2 Ibid, pp. 11-13. 1

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