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Abstract

Supreme Court Circular (SEMA) 3/2023 states that apartment and/or flat developers do not meet the simple proof requirements referred to in Article 8 paragraph (4) of Law 37/2004. This paper aims to answer what is the legal implication of the exception to the bankruptcy request against apartment and/or flat developers that were considered insufficient to meet the simple proof requirement in SEMA 3/2023? and what the solutions as a recommendation that can be provided? This research is normative legal research that employs legislative, conceptual, and comparative approaches through document studies to obtain secondary data. Simple proof in bankruptcy law refers to clear evidence of two main conditions for a person to be declared bankrupt, including the existence of two or more creditors and a debt that is due and collectible. Thus, the reason for this exception is to avoid the complex impact of bankruptcy in the apartment and flat business which is inappropriate. Furthermore, exceptions in SEMA 3/2023, have also limited the debtor’s rights and creditor’s rights, including fully paid purchaser, to use the bankruptcy mechanism as one of the best solutions when the debtor is unable to pay his debts. To address this concern, this paper suggests: first, limiting and restating the simple proof requirement in bankruptcy cases; second, excluding fully paid purchaser’s apartment/flat unit from the bankruptcy estate and not necessarily requiring the court to refuse the apartment and/or flat developer’s PKPU/bankruptcy request that may lead to the loss of creditors’ rights in their efforts to recover their outstanding debts by utilizing the PKPU/Bankruptcy mechanism through the revision of Law 37/2004 and or Law/2011, not through the SEMA.

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