Law Enforcement Against Criminal Acts Committed by Curators in the Context of Their Independence in Administering Debtors Assets During PKPU and Bankruptcy Proceedings

Abstract

The absence of specific criminal law provisions within the Bankruptcy Law and Suspension of Debt Payment Obligations (PKPU) Law has been perceived as leading to the non-application of the principle that special laws (lex specialis) override general laws (lex generalis). The interpretation that the general provisions of the Indonesian Criminal Code (KUHP) should prevail in such cases is considered erroneous. In addressing criminal acts committed by parties involved in bankruptcy and PKPU, the establishment of general provisions aims to prevent a legal vacuum and ensure legal certainty. Accordingly, Article 234 and paragraph (2) of Article 234 of the Bankruptcy Law, particularly the phrase “may be subject to criminal sanctions,” serve as both a normative safeguard and a balancing mechanism. This is particularly relevant given the lack of curators independence in law enforcement and the need for preventive measures to ensure compliance in PKPU proceedings. In other words, the Bankruptcy and Suspension of Debt Payment Obligations Law (UU PUT) does not merely regulate the procedural aspects of liability claims in cases where curators commit errors or negligence in managing and liquidating the bankrupt debtor’s assets. Therefore, the provisions on criminal liability as stipulated in Articles 72, 73, and 234 of the Bankruptcy and PKPU Law constitute a legal framework applicable in general to criminal liability, including the imposition of criminal sanctions on those responsible for financial losses suffered by bankrupt individuals. This is based on the principle of independence. Consequently, criminal sanctions and liability under these provisions may be applied separately from the elements contained in the KUHP, and cases should be adjudicated in accordance with prevailing criminal procedural law under the KUHP.