Provisions regarding confiscation of collateral can be seen in Article 227 paragraph (1) HIR:
If there is a reasonable suspicion that a person who is in debt, while a decision has not yet been passed on him or while the decision against him has not yet been executed, will try to embezzle or take away his goods, both immutable and permanent, with the intention of keeping the goods away from the debt collector, then Upon a letter of request from an interested person, the chairman of the district court can give an order that the goods be confiscated in order to protect the rights of the person who submitted the request, and the requester must be notified that he will appear before the court at the first district court after that to advance and strengthen his claim.
Based on this article, the purpose of issuing a security confiscation is to maintain the rights of the party who submits or submits the request for security confiscation, not to create or grant new rights. The party in question is the party who has the receivables (creditor) against the party whose collateral is requested to be confiscated (debtor). Meanwhile, the rights referred to in this article are the rights of creditors, whether ordinary or privileged creditors.
In the provisions of Articles 1131 and 1132 of the Civil Code which states that:
Article 1131
All movable and immovable assets belonging to the debtor, both existing and future, become collateral for the debtor’s individual obligations.
Article 1132
The goods become joint collateral for all creditors against whom the proceeds from the sale of the goods are divided according to the proportion of their respective receivables unless there are valid reasons for priority among the creditors.
The guarantee based on Article 1131 of the Civil Code is a general guarantee that applies to all creditors. Meanwhile, Article 1132 of the Civil Code states that special and priority security rights must be tied to material security rights.
In fact, there is no prohibition in the legislation on the possibility of confiscating collateral (Conservatoir Beslag) on assets that are legally bound by a material security right as mentioned above. However, in practice, the collateral confiscation becomes a qualification for equal confiscation (Vergelijken Beslag) by the bailiff. This is based on Article 463 of the Civil Procedure Regulations or commonly called the Reglement op de Rechtsvordering (RV). The principle of security law requires that the preferential rights of the holder’s creditor ( preferred creditor) on assets that have been legally bound by a material security right are preferred (droit de preference). As a result of the application of this legal principle, when a sale or auction occurs of the debtor’s assets, the preferred creditor (bank) has the right to first take the money from the execution until all receivables are paid off. If in this case there is still a remainder from the proceeds of the sale or auction, then it becomes the share of the party entitled to it based on the confiscation of equality or in other words, in the implementation of the execution the status becomes confiscation of execution (executorial beslag).
So, every creditor has security rights over their receivables, whether in the form of general guarantees or special and priority guarantees. Creditors can apply for confiscation of collateral for the debtor’s assets which have been pledged as collateral to the bank through an application to the court. However, in this case there is something called confiscated equality.
Legal basis:
Reference:
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