Granting of Dependent Rights: A Legal Comparison Between Indonesia and Malaysia
), Simon Alex Pasaribu(2), Diana Ria Winanti Napitupulu(3)
(1) Faculty of Law, Universitas Kristen Indonesia, Jakarta, Indonesia
(2) Faculty of Law, Universitas Kristen Indonesia, Jakarta, Indonesia
(3) Faculty of Law, Universitas Kristen Indonesia, Jakarta, Indonesia
Corresponding Author
Abstract
Introduction: The enforcement of security rights plays a crucial role in debt guarantee systems, balancing the interests of creditors and debtors. Although both countries share a civil law tradition, significant differences exist in their execution mechanisms, particularly regarding the role of the courts, auction procedures, and the protection of debtor rights. In Indonesia, execution procedures are governed by Law Number 4 of 1996 on Mortgage Rights, which allows creditors to initiate either a parate execution or litigation through court proceedings. In contrast, Malaysia mandates judicial foreclosure for all mortgage enforcements, as regulated under the National Land Code 1965 and the applicable procedural rules.
Purposes of the Research: This study aims to analyze and compare the procedures for executing mortgage objects between Indonesia and Malaysia.
Methods of the Research: This research adopts a normative juridical and descriptive-comparative approach by examining statutory regulations, court decisions, and relevant legal literature from both jurisdictions.
Findings of the Research: The findings reveal that Indonesia’s system offers speed and flexibility but poses a higher risk of procedural abuse, while Malaysia’s judiciary-based approach provides greater debtor protection at the cost of increased time and legal expenses. The study also identifies practical challenges such as administrative delays, high execution costs, and legal uncertainties. Accordingly, this research recommends strengthening the oversight of execution practices in Indonesia and considering the introduction of a statutory limitation period, as implemented in Malaysia, to ensure a balanced approach between efficiency and justice in mortgage enforcement systems.Keywords
DOI
10.47268/tatohi.v5i2.2989
Published
2025-04-30
How To Cite
@article{TATOHI2989,
author = {Inoto Saro and Simon Alex Pasaribu and Diana Ria Winanti Napitupulu},
title = {Granting of Dependent Rights: A Legal Comparison Between Indonesia and Malaysia},
journal = {TATOHI: Jurnal Ilmu Hukum},
volume = {5},
number = {2},
year = {2025},
keywords = {Mortgage Rights; Execution; Legal Comparison; Indonesia; Malaysia; Legal Protection.},
abstract = {Introduction: The enforcement of security rights plays a crucial role in debt guarantee systems, balancing the interests of creditors and debtors. Although both countries share a civil law tradition, significant differences exist in their execution mechanisms, particularly regarding the role of the courts, auction procedures, and the protection of debtor rights. In Indonesia, execution procedures are governed by Law Number 4 of 1996 on Mortgage Rights, which allows creditors to initiate either a parate execution or litigation through court proceedings. In contrast, Malaysia mandates judicial foreclosure for all mortgage enforcements, as regulated under the National Land Code 1965 and the applicable procedural rules.Purposes of the Research: This study aims to analyze and compare the procedures for executing mortgage objects between Indonesia and Malaysia.Methods of the Research: This research adopts a normative juridical and descriptive-comparative approach by examining statutory regulations, court decisions, and relevant legal literature from both jurisdictions.Findings of the Research: The findings reveal that Indonesia’s system offers speed and flexibility but poses a higher risk of procedural abuse, while Malaysia’s judiciary-based approach provides greater debtor protection at the cost of increased time and legal expenses. The study also identifies practical challenges such as administrative delays, high execution costs, and legal uncertainties. Accordingly, this research recommends strengthening the oversight of execution practices in Indonesia and considering the introduction of a statutory limitation period, as implemented in Malaysia, to ensure a balanced approach between efficiency and justice in mortgage enforcement systems.},
issn = {2775-619X}, pages = {92--103} doi = {10.47268/tatohi.v5i2.2989},
url = {https://fhukum.unpatti.ac.id/jurnal/tatohi/article/view/2989}
}
A Wijaya, “Perbandingan Eksekusi Hak Tanggungan di Indonesia dan Negara-Negara Eropa”, Jurnal Hukum Eropa, 14 no. 1 (2019): p. 22-37.
Boedi Harsono, Hukum Agraria Indonesia: Sejarah Pembentukan Undang-Undang Pokok Agraria, Isi dan Pelaksanaannya, Bandung: Djambatan, 2005.
D H Gunawan, “Prosedur Eksekusi Hak Tanggungan di Indonesia: Tantangan dan Solusinya”, Jurnal Hukum dan Ekonomi, 9 no. 3 (2020): p. 45-58.
Herlien Budiono, Kumpulan Tulisan Hukum Perdata di Bidang Kenotariatan, Bandung: Citra Aditya Bakti 2006.
M H Saragih, “Perlindungan Hukum bagi Debitor dalam Eksekusi Hak Tanggungan”, Jurnal Hukum Indonesia, 7 no. 2 (2021): p. 102-115.
S H Simanjuntak, Hukum Jaminan dan Eksekusi Hak Tanggungan, Jakarta: Raja Grafindo, 2017
S K Harahap, Penyelesaian Sengketa dan Eksekusi Hak Tanggungan di Indonesia, Bandung: Refika Aditama, 2022.
Teo Keang Sood, Land Law in Malaysia, 3rd Edition, Malaysia: LexisNexis 2019.
Thameez Nisha Hasseem v. Maybank Allied Bank Berhad (2023) 5 CLJ 874; lihat juga: Lexology, "The Limitations of a Chargee’s Rights" https://www.lexology.com/library/detail.aspx?g=e47a4ce4-8809-4af3-b765-d157922123a2.
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| Dublin Core | PKP Metadata Items | Metadata for this Document | |
| 1. | Title | Title of document | Granting of Dependent Rights: A Legal Comparison Between Indonesia and Malaysia |
| 2. | Creator | Author's name, affiliation, country | Inoto Saro; Faculty of Law, Universitas Kristen Indonesia, Jakarta; Indonesia |
| 2. | Creator | Author's name, affiliation, country | Simon Alex Pasaribu; Faculty of Law, Universitas Kristen Indonesia, Jakarta; Indonesia |
| 2. | Creator | Author's name, affiliation, country | Diana Ria Winanti Napitupulu; Faculty of Law, Universitas Kristen Indonesia, Jakarta; Indonesia |
| 3. | Subject | Discipline(s) | |
| 3. | Subject | Keyword(s) | Mortgage Rights; Execution; Legal Comparison; Indonesia; Malaysia; Legal Protection. |
| 4. | Description | Abstract | Introduction: The enforcement of security rights plays a crucial role in debt guarantee systems, balancing the interests of creditors and debtors. Although both countries share a civil law tradition, significant differences exist in their execution mechanisms, particularly regarding the role of the courts, auction procedures, and the protection of debtor rights. In Indonesia, execution procedures are governed by Law Number 4 of 1996 on Mortgage Rights, which allows creditors to initiate either a parate execution or litigation through court proceedings. In contrast, Malaysia mandates judicial foreclosure for all mortgage enforcements, as regulated under the National Land Code 1965 and the applicable procedural rules.Purposes of the Research: This study aims to analyze and compare the procedures for executing mortgage objects between Indonesia and Malaysia.Methods of the Research: This research adopts a normative juridical and descriptive-comparative approach by examining statutory regulations, court decisions, and relevant legal literature from both jurisdictions.Findings of the Research: The findings reveal that Indonesia’s system offers speed and flexibility but poses a higher risk of procedural abuse, while Malaysia’s judiciary-based approach provides greater debtor protection at the cost of increased time and legal expenses. The study also identifies practical challenges such as administrative delays, high execution costs, and legal uncertainties. Accordingly, this research recommends strengthening the oversight of execution practices in Indonesia and considering the introduction of a statutory limitation period, as implemented in Malaysia, to ensure a balanced approach between efficiency and justice in mortgage enforcement systems. |
| 5. | Publisher | Organizing agency, location | Faculty of Law Pattimura University |
| 6. | Contributor | Sponsor(s) | |
| 7. | Date | (YYYY-MM-DD) | 2025-04-30 |
| 8. | Type | Status & genre | Peer-reviewed Article |
| 8. | Type | Type | |
| 9. | Format | File format | |
| 10. | Identifier | Uniform Resource Identifier | https://fhukum.unpatti.ac.id/jurnal/tatohi/article/view/2989 |
| 10. | Identifier | Digital Object Identifier | 10.47268/tatohi.v5i2.2989 |
| 11. | Source | Title; vol., no. (year) | TATOHI: Jurnal Ilmu Hukum; Volume 5 Issue 2, April 2025 |
| 12. | Language | English=en | en |
| 13. | Relation | Supp. Files | |
| 14. | Coverage | Geo-spatial location, chronological period, research sample (gender, age, etc.) | |
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Copyright (c) 2025 Inoto Saro, Simon Alex Pasaribu, Diana Ria Winanti Napitupulu
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