DUALISME PERATURAN TERKAIT KEWENANGAN PENGADILAN DALAM PENYELESAIAN SENGKETA KEPAILITAN PERKARA EKONOMI SYARIAH

Annisa, S.H., NIM.: 22203012063 (2024) DUALISME PERATURAN TERKAIT KEWENANGAN PENGADILAN DALAM PENYELESAIAN SENGKETA KEPAILITAN PERKARA EKONOMI SYARIAH. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

The dualism of authority in resolving bankruptcy disputes of Islamic financial institutions in Indonesia reflects legal uncertainty due to overlapping regulations between the Commercial Court and the Religious Court. Law No. 37/2004 on Bankruptcy and Suspension of Debt Payment Obligations (PKPU) stipulates that bankruptcy disputes, whether sharia-principled or not, are within the authority of the Commercial Court. Provisions in Law No. 3 of 2006 and Sharia Banking Law No. 21 of 2008, as well as Constitutional Court Decision No. 93/PUU-X/2012 and PERMA No. 14 of 2016, authorize the Religious Court to resolve sharia economic disputes. This misalignment has the potential to ignore sharia values in the dispute resolution process, which has a negative impact on sharia economic actors. This study aims to further analyze the causes of unclear authority and its impact on sharia economic actors if the case is tried in the Commercial Court. This research method is normative law with a statutory approach and includes a type of library research. Primary data includes the 1945 Constitution, laws and regulations, court decisions with permanent legal force, and DSN MUI fatwas related to bankruptcy. Secondary data is obtained from scientific publications and relevant books. Qualitative analysis is applied to understand and interpret the legal data, utilizing Gustav Radbruch's legal theory and mas}lah}ah as the basis for formulating research conclusions. The research findings show that the application of bankruptcy law in Islamic financial institutions still follows conventional principles that are not in line with sharia principles, especially in profit and loss sharing contracts. The provisions in the Bankruptcy Law that give authority to the Commercial Court are considered inappropriate for sharia disputes, which should remain within the jurisdiction of the Religious Court (lex posteriori). The legal vacuum related to sharia insolvency is exacerbated by the elimination of taflis material in PERMA No. 14/2016, the imperfections in PERMA No. 2/2008, and the incompatibility of KMA Letter No. 32/SK/IV/2006 with applicable law. This uncertainty has the potential to threaten the principle of mas}lah}ah, especially h}ifz} al-di>n dan h}ifz} al-ma>l which are the main foundations in safeguarding the interests of creditors and debtors. Creditors face uncertainty in the return of funds that can threaten financial stability, while debtors lose the opportunity to restructure debt. Therefore, legislative and judicial policies are needed to ensure the resolution of Islamic economic bankruptcy in accordance with sharia principles and the principles of justice according to Gustav Radbruch's theory, separation of sharian and conventional bankruptcy regulations.

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