LEGAL PROTECTION OF CONCURRENT CREDITORS FOR THE DEBTS THAT ARE NOT GUARANTEED BY PROPERTY RIGHTS ACCORDING TO BANKRUPTCY LAW AND ISLAMIC LAW

: Bankruptcy is a condition where the debtor is unable to fulfill his obligations to pay debts to creditors. Revision of Law Number 4 of 1998 became Law Number. 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations explains that concurrent creditors are creditors who do not hold collateral and who do not have special rights and whose claims are not recognized or recognized conditionally, of course, this causes the position of concurrent creditors to be very vulnerable to getting their rights back on the debt of the bankrupt debtor. This research is a normative research using a statutory approach and a conceptual approach, where in this study the researcher examined the regulations on bankruptcy through the Act and analyzes the concept of legal protection for concurrent creditors. The results of the study showed that, first, Law Number 37 of 2004 concerning Bankruptcy and PKPU (Postponement of Debt Payment Obligations) explains that concurrent creditors are conditional creditors and do not have special rights, their position in paying off debtors’ debts from the remaining proceeds from the settlement or auction of bankrupt assets. Second, Islamic law stipulates that the guaranteed of legal protection for creditors is to fulfill debt obligations as regulated in Surah al Baqarah verse 282 based on the principle of al ‘adalah.

Abstract: Bankruptcy is a condition where the debtor is unable to fulfill his obligations to pay debts to creditors. Revision of Law Number 4 of 1998became Law Number. 37 of 2004 Bankruptcy and Suspension of Debt Payment Obligations explains that concurrent creditors are creditors who do not hold collateral and who do not have special rights and whose claims are not recognized or recognized conditionally, of course, this causes the position of concurrent creditors to be very vulnerable to getting their rights back on the debt of the bankrupt debtor. This research is a normative research using a statutory approach and a conceptual approach, where in this study the researcher examined the regulations on bankruptcy through the Act and analyzes the concept of legal protection for concurrent creditors.
The results of the study showed that, first, Law Number 37 of 2004 concerning Bankruptcy and PKPU (Postponement of Debt Payment Obligations) explains that concurrent creditors are conditional creditors and do not have special rights, their position in paying off debtors' debts from the remaining proceeds from the settlement or auction of bankrupt

INTRODUCTION
Based on Article 11 of Civil Code, it has been defined that the debtor's property is fully is a guarantee for the debt owned, therefore the creditor's external relationship is reflected, 1) the creditor is allowed to take payment from debtor's assets; 2) the debtor's property can be sold as a payment of creditor bills; and 3) the creditor can be only guaranteed by the debtor's property, not a debtor person. (Hukum et al., n.d.) That provision is considered very fair (Aziz et al., n.d.), regarding that the fulfillment of promise is a moral principle by legislators, whereas when the debtor is not able to fulfill the obligation paying debts, so the creditor tends to get losses, moreover, credit agreement is an engagement that gives rise to individual rights, which are relative and the creditor position is just a concurrent creditor.
In Article 2 Paragraph (1) of Bankruptcy Law, creditor is divided into three types: separatist creditor, preference creditor, and concurrent creditor.
The division of creditor in a concept of bankruptcy law is according to the structured creditors or structured prorate principle, which this division is based on the order of priority over sales result of bankruptcy assets. The article 1132 of Civil Code has explained that the debtor's property is collateral with creditor and the sales result of assets will be for sale and divided according to the balance of size of the receivables of each creditor, this is what reflects the principle of creditorium parity. (Kepailitan Suatu Solusi Dalam Memaksimalkan Penagihan Piutang Kreditur | Slamet | Lex Jurnalica, n.d.) Bankruptcy is considered as a commercial solution in solving debt problem between creditor and debtor, which the debtor is regarded as the party which is unable to pay the debt to creditor, so when the debtor's debt has reached the due date and must pay the debt, the application of bankruptcy statement becomes something that is possible and the bankruptcy agency is expected to be an effective alternative of settlement of debtor's obligation. (Latukau et al., n.d.) In the contrary of the previous concept, Islam has further defined the procedures of solving bankruptcy problem, in which the judge will give decision to withhold someone's assets for debt payment need (hijr) and consider also decide the bankrupt debtor in fair and hold the property for the interest of debt settlement.(LUBIS, 2013) As stated in Surah Al-Baqarah verse 280: "And if the debtor is in an straitened circumstance, then (let there be) postponement to (the time of) ease, and remit the debt as almsgiving would be better for you, if you know" In the law of bankruptcy, actually not creditors have the same position, this is due to the type and nature of each debt: 1) separatist creditor, the creditor who has collateral for material debt (guarantee right), for instance mortgage holder, mortgage, pawning, fiduciary, and many others (Article 55 of Bankruptcy Law); 2) preferred creditor, the creditor who has receivables that are domiciled with the privilege of pawning guarantee, mortgage, and fiduciary guarantee, as it has been regulated in Article 1139 and Article 1149 of Civil Code; 3) concurrent creditor, the creditor who must share with other creditors proportionally according to the bill size comparison, from the result of bankrupt debtor's assets sales who is burdened with collateral right.
Conceptually, the repayment of concurrent creditor's receivables is sufficient from the sales or auction result of bankrupt assets after being taken by separatist and preferred parties. This concurrent creditor does not hold collateral and have special rights, the bill is not approved or it is approved but conditionally. However, the urgency of protection for either the debtor or creditor (bank) to fulfill fair rights and obligation, an no party is harmed, which the bankrupt debtor can give bad impacts globally.
I Made Teguh Adinata (Adinata & Priyanto, 2004) in his study has stated a different opinion about legal protection for separatist creditor, that collateral property held by separatist creditor is not bankrupt boedel, when the debt cannot be covered by collateral property execution, the separatist creditor will collect the rest as a concurrent creditor. In contrast, when it finds more execution of collateral property for separatist creditor, the rest will be returned to the Based on that explanation, the researchers can conclude that even if there are contradictive conditions between Article 55 and Article 56 of Bankruptcy Law, the position of preferred creditor still has the highest position, because the preferred creditor holds property guarantee rights and may have collateral property execution. In contrast, although the concurrent creditor is not a privileged creditor type and does not hold property guarantee rights, the certainty of debt repayment to concurrent creditor should be still conducted.
However, a problem that occurs during the settlement of bankrupt assets is concurrent creditor's receivables are not fully paid off, if the debt amount is greater than bankrupt property taken by separatist creditor and preferred creditor. To put in a concept, the debt agreement between concurrent creditor and debtor is carried out legally even though there is no guarantee of property rights (mortgage right, fiduciary, and loan) becomes a weakness of bankruptcy law offer that can bring failure risk due to assets impairment and debtor company capital which does not indicate the ability of debt repayment. Based on the decision on that case, both separatist creditor and concurrent creditor, as the position of separatist creditor has a privileged rights on debt repayment than concurrent creditor, but in this case, the status of separatist creditor is taken down and becomes concurrent creditor by taking vote and division of debt payment according to pari passu principle.
The research above has similarities in the theme of the discussion studied, namely legal protection for creditors in bankruptcy. however, this study focuses although the position of concurrent creditor is fulfilled after debt repayment of separatist creditor and preferred creditor, it needs a legal certainty for the concurrent creditor over fulfillment of rights, considering that the payment of debt bull of concurrent creditor is very rarely fulfilled in full from the result of bankrupt assets sales.

RESEARCH METHOD
This research was conducted using normative law, the researcher examines a bankruptcy law regulation on the position of concurrent creditors on their rights. The research approach is carried out using the statue approach, namely: first in taking repayment than the other creditors. However, the new preferred right appeared when the confiscated properties were not sufficient to repay all debt amounts and preferred right did not give authority of an object.
The preferred right for a collector could not be done on the confiscation of an object without having executorial title; 3. Concurrent creditor, the creditor who did not hole collateral and have special right, the bills were not admitted and conditional, this type of creditor, the receivable repayment was settled through auction or sales of bankrupt assets after the separatist creditor and preferred creditor took their portion, while the division of receivable size was based on the position of each creditor.
Based on the explanation above, the concurrent creditor has these following characteristics: 1 rights over bankrupt debtor's assets based on pari passu pro rata parte principle.
As it was known before that the aim of bankruptcy law was to provide legal protection guarantee of creditor's rights, so the debtor could fulfill the bills(Hukum Kepailitan / Adrian Sutedi | OPAC Perpustakaan Nasional RI., n.d.), it was also referred that all properties owned by the bankrupt debtor in terms of movable and immovable property with general guarantee and those creditors have an equal position, also in this case of debt repayment, no one was prioritized between two, as well as the concurrent creditors(Jaminan Fidusia / Gunawan Widjaja & Ahmad Yani | OPAC Perpustakaan Nasional RI., n.d.).

Regarding to the difference of position among creditors ruled in law, it
showed that there was no legal certainty over repayment of concurrent creditors.
Utrech explained that the legal certainty has these following meanings: 1) a general rule to create loyal individuals who know what can and cannot be done; 2) as a form of legal protection for individuals from governmental arbitrariness. (Subekti, 1977) Anyway, the position of creditors should not be distinguished generally, because frequently -in fiduciary guarantee -the concurrent creditor did not recognize that the object of fiduciary guarantee has been previously charged to the first creditor, so the concurrent creditor must compete with the other creditors who have special rights. In this case, actually the role of debtor's good intention was needed and very significant between debtor and creditor.

Are Not Guaranteed In Terms of Islamic Law
Based on the law regulation, the concurrent creditor got repayment from the remaining of debt repayment or auction of bankrupt assets. The division of debt repayment among concurrent creditors must be done proportionally in accordance with the comparison of receivable size of each of creditor (pari passu pro rata parte). Pari passu and pro rata rights referred that the creditors jointly got repayment (without anyone comes first) calculated according to the receivable size of each rather than their receivables in whole, to all properties of bankrupt

Undang-Undang Nomor 37 Tahun 2004 Tentang Kepailitan Dan Penundaan Kewajiban
Pembayaran Utang, n.d.) The bankruptcy law has defined that the bankrupt debtor and his assets were not more than the debt amount, so the concurrent creditor was the most disadvantaged party and harmed with not getting paid any debt repayment from the debtor. The bankruptcy facility should not be used for bad intention.
In of two or more creditors and at least overdue debt which was very risky and potential to be used for debtor or creditor's distorted interest from the essence of bankruptcy and might harm other parties (Disemadi & Gomes, 2021). The regulation of bankruptcy was aimed to offer protection, so the creditors could get repayment in fair and balanced, and the debtor could pay the debt with good intention.
The debt repayment was a responsibility that must be fulfilled by debtor, in this context the debtor was a borrower (mu'ir). The debtor as borrower must have a good intention and confidence to settle down the debt repayment as it has been agreed at the beginning of debt contract. In the principles within sharia contract, one principle matched to this context, it was the principle of appointment bond as many orders about keeping promises written in Al-Qur'an and Hadits. In the rules of ushul fiqh, "The order basically shows an obligation".
Thus, it could conclude that the promise was binding and must be fulfilled.
The responsibility of debtor as a borrower to fulfill debt contract was based on Allah's order in surah Al-Isra (17) verse 34, "Don't come near to the wealth of the orphan, except in a good way until he comes to strength; and keep the covenant. Definitely, the covenant will be asked." Abu Bakar has said that Rasulullah SAW decided that whoever dies and owns someone else's property, but he has not received any payment yet, so the property owner is more entitled that someone else. If the seller gets goods on bankrupt customer, he is more entitled to get and take it from all creditors who  Indonesia, Ensiklopedia Bebas, n.d.)." Imam Syafi'i, Imam Malik, Abu Yusuf, and Muhammad have allowed the sales of debtor's assets at the request of creditor. Al-Syaukani has also allowed the confiscation of bankrupt debtor's property in order to pay the debt, even though the whole properties did not adequate to pay all the debts. This opinion was referred to the story of Muaz bin Jabbal. (Rusli, 1999) Occasionally, the receivable payment of concurrent creditor was not fulfilled completely. This condition was proven by the dissatisfaction of concurrent creditor over bankrupt asset division by curator or lack of bankrupt assets that should be received by concurrent creditors arising after the bankruptcy assets were settled by the curator. It needed the implementation of a fair and truthful justice in order to realize justice for the disputing parties.
The statement above has asserted that Islam has regulated the relationship among human in social life, including to debt matter. It was also explained in Ibnu Taimiyah has said that justice was a fundamental pillar in a government. That was how important the justice for human, until Ibnu Taimiyah has argued that a fair government with non-Muslim leader was better than an unfair Muslim government. Based on that phrase, Ibnu Taimiyah seemed to assert that the fair government with non-Muslim leader was much better than unjust Muslim government. This expression also implied that the essence was more important than the form, and the value was more treasured than merely the symbol. Relating to the statement of Ibnu Taimiyah, actually it stated that justice principle in sharia contract was referred that the related party should uphold this principle, so injustice could be prevented, don't let it happen like Ibnu Taimiyah's statement that the fair non-Muslim leader was better in a system than unfair Muslim leader, it interpreted that a business contract between two parties, one Muslim and non-Muslim, the implementation of justice principle was more important than contract among Muslims but committing acts of fraud and injustice.
Islam protected weak people against inequality and discrimination.
Injustice was a transaction which raised inequality for other parties. The supervising judge and curator must concern on a fair and balanced protection for interest of all creditors. It was not allowed when the debt repayment was only addressed to creditor with property guarantee rights. The pressure by the more dominant party on weak party (in this context referring to concurrent creditor) was included into injustice act.
Injustice act was prohibited in muamalah contract. PBI No.10 /16/ PBI/2008 on the implementation of sharia principle in fundraising and funds disbursement contexts also Islamic bank services have explained that sharia transaction must be free from gharar, maisir, usury, injustice, and haram object.

CONCLUSIONS
Bankruptcy law regulated the classification of creditor on debt fulfillment rights from bankrupt debtor. The concurrent creditor was a creditor without any guarantee whose rights fulfillment was categorized after separatist creditor and preferred creditor -those were higher than concurrent creditor, this classification often caused harm in the debt repayment of bankrupt debtor for concurrent creditor. The concurrent creditor might not also get repayment when the debtor's assets were less than the total debt of bankrupt debtor.
According to Islamic law, the bankrupt people was called muflis, while the debt repayment was an obligation for debtor, and the entity which offered debts was called as a creditor. The debtor sometimes did not have ability to pay off the debt (fulfilling the obligation to the creditor). This case was ruled in Surah Al-Baqarah verse 282 which stated that the debt repayment is an obligation that cannot be neglected as a form of certainty for the creditor.