28 January, 2016
The Indonesian Government has issued Government Regulation No. 21 of 2015 regarding Procedures to Register Fiduciary Security and Fees to Draw Up a Fiduciary Security Deed (“GR 21/2015″). GR 21/2015 revokes GR No. 86 of 2000 regarding the same (“GR 86/2000″).
GR 21/2015 regulates, inter alia, the procedures for the registration of Fiduciary Security and the correction and amendment of a Fiduciary Security Certificate (“Certificate”). It also regulates the process for the notification of Fiduciary Security termination by the Fiduciary Security holder (i.e., the creditor whose receivables payment is secured by the Fiduciary Security) through the online system managed by the Ministry of Law and Human Rights (“MOLHR”).
One of the stated aims of GR 21/2015 is to facilitate the electronic registration of Fiduciary Security. Under GR 86/2000 registration was done manually, resulting in delays in processing Fiduciary Security registration as the high number of applications sometimes overwhelmed the facilities and personnel at the Fiduciary Security Office (“Office”) at the MOLHR. In addition, GR 21/2015 regulates the fees to draw up the Fiduciary Security Deed.
Fiduciary Security Registration, Correction and Amendment
Under GR 21/2015, an application to register a Fiduciary Security must be submitted to the MOLHR no later than 30 days as of the execution of the Fiduciary Security Deed. The application must contain the following information:
the identities of both the Fiduciary Security holder and the Fiduciary Security grantor, namely the owner of the Fiduciary Security object.
Please note that the online system will require the Fiduciary Security holder to have an address in Indonesia even if it is a foreign company. A Fiduciary Security holder may use the address of its subsidiary or the address of its legal counsel;
date and number of the Fiduciary Security Deed, as well as the name and address of the notary who drew up the Fiduciary Security Deed; data of master agreement, i.e., the loan agreement whose payment is guaranteed by the Fiduciary Security; description of the Fiduciary Security object; security value; and value of the Fiduciary Security object.
The Fiduciary Security holder will receive a receipt of registration and will have to pay the Fiduciary Security registration fees to the designated bank. Upon payment of the fees, the Fiduciary Security will be recorded electronically and the Fiduciary Security will be deemed valid. An official at the Fiduciary Security Office will sign the Certificate electronically.
Further, if there is any incorrect data in the Certificate related to points 1, 2, 3, 4 and 6 above, the Fiduciary Security holder must submit an application to the MOLHR within 30 days of the issuance of the Certificate to correct the information. The application must at least contain: (i) the number and date of the Certificate; and (ii) the information to be corrected, accompanied by the following supporting documents:
- copy of Certificate;
- copy of Fiduciary Security registration fee payment receipt; and
- copy of Fiduciary Security Deed.
If the incorrect data in the Certificate concerns the security value, as per point 5 above, or there is a change in the security value, the Fiduciary Security holder must submit an application to amend the Certificate. That application must at least contain: (i) number and date of the most current Certificate; (ii) name and address of the notary who drew up the Certificate; and (iii) the data to be changed and the correct new data. The Fiduciary Security holder will obtain a receipt and must pay a fee for the amendment through a designated bank.
As with the registration of Fiduciary Security, an official at the Fiduciary Security Office will sign the amended Certificate electronically.
Fiduciary Security Termination
A Fiduciary Security is terminated for the following reasons:
- the debt secured under the Fiduciary Security has been settled;
- the Fiduciary Security holder releases its rights under the Fiduciary Security; or
- the object of Fiduciary Security no longer exists.
The Fiduciary Security holder must notify the MOLHR if any of the above conditions occurs within 14 days as of the termination date by stating at least: (i) the reason of termination; (ii) number and date of the Certificate; (iii) name and address of the notary who drew up the Certificate; and (iv) the termination date.
Upon such notification, the Fiduciary Security Office will delete the Fiduciary Security and issue a termination statement that the Certificate is no longer valid. If the Fiduciary Security holder fails to notify the MOLHR regarding a Fiduciary Security termination, the relevant Fiduciary Security cannot be re-registered.
Fiduciary Security termination is free of charge. Any Fiduciary Security registered prior to April 6, 2015 is valid but its future termination will be subject to the provisions of GR 21/2015.
Fees to Draw Up Fiduciary Security Deed
The fees to draw up a Fiduciary Security Deed under GR 21/2015 depend on the security value, referring to the fees for drawing up the notarial deed as stipulated in Article 36(3) of Law No. 30 of 2004 dated October 6, 2004 regarding Notary Office, as amended by Law No. 2 of 2014 dated January 15, 2014. The fees are as follows:
No 1.
(Secutiry) Up to IDR 100 million Maximum
(Fees) 2.5% of the security value
No 2.
(Secutiry) More than IDR 100 million to IDR 1 billion Maximum
(Fees) 1.5% of the security value
No 3.
(Secutiry) More than IDR 1 billion
(Fees) Based on an agreement between the notary and the relevant parties but not more than 1% of the Fiduciary Security object
Last, under the online application system, only a notary can submit the applications and notifications discussed above as a proxy or representative of the Fiduciary Security holder. This is because only the notary has access to the MOLHR portal, enabling the notary to provide the required data and then print out the Certificate or amended Certificate. This is the same system used for MOLHR approval or acknowledgment of the articles of association of a limited liability company. Please note that all the data stored in the MOLHR’s online system has the same legal effect as a fiduciary register book.
