The absence of legal certainty in the application of the pari passu pro rata parte principle in the distribution of bankrupt accounts in Indonesia has given rise to uncertainty regarding the protection of the rights of laborers whose employers or companies have faced bankruptcy. This article considers that Indonesia requires a set of formulations enabling the state to provide legal protection for the rights of laborers affected by employer or company bankruptcy. The article explores the feasibility of adopting the Francovich Principle in Indonesia, defining it as a principle holding the state accountable for the losses incurred by laborers due to company bankruptcies.
The article concludes that several conditions must be met to apply the Francovich Principle, including the establishment of a guarantee institution, the obligation for financial contributions from companies, and the implementation of specific measures to prevent abuse. The state檚 effort to adopt the Francovich Principle involves establishing a priority scale in drafting laws related to the Francovich Principle into the Priority National Legislation Program. Furthermore, the government needs to revitalize institutions related to the Francovich Principle within the national legal and regulatory system.
Even though the Indonesian Constitutional Court Decisions Number 18/PUUVl/2008 and Number 67/PUU-Xl/2013 have confirmed the positions of creditors in bankruptcy cases are the same, the practical implementation still witnesses discrepancies in the distribution of bankruptcy debt rights. This problem is related to the uncertainty of applying the pari passu pro rata parte principle in the distribution of bankruptcy debts in Indonesia, which still gives rise to quo vadis.
The adoption of the Francovich Principle in Indonesia emerges as an effective step toward addressing this concern. The Francovich Principle assigns responsibility to the state for losses incurred by laborers due to corporate bankruptcies. However, its application hinges on several conditions, including the establishment of a guarantee institution, mandatory financial contributions from companies, and the formulation of specific measures to prevent abuse.This includes the need to avoid abuse, such as if it turns out that fulfillingthese obligations cannot be justified because of the specialrelationship between the employee and the employer and the existence of common interests, which results in collusion between them.
The absence of legalresearch on the feasibility of adopting the Francovich Principle in Indonesia has significant implications for the author檚 limited perspective in formulating a draft for the incorporation of the Francovich Principle into the national legal and regulatory framework. Nevertheless, this research serves as an initial step in assessing the legal viability of adopting the Francovich Principle. Additionally, establishing 234 Yustisia Volume 12 Number 3 (December 2023) The Francovich Principle as the Basis of State… a priority scale is essential in including legislation on the Francovich Principle in the Priority National Legislation Program (Program Legislasi Nasional, Prolegnas).
The government also needs to revitalize institutions related to the Francovich Principle in the national legal and regulatory system, especially regarding the establishment of a guarantor institutions. This revitalization aims to ensure that these institutions function comprehensively, effectively, and with accountability in their roles and authority. In addition to incorporating the Francovich Principle into the Prolegnas, laborers can actively advocate for its inclusion in their bankruptcy lawsuits, further emphasizing its relevance and applicability within the Indonesian legal context.
Penulis: Agus Widyantoro ; Moch.Marsa Taufiqurrohman ; Xavier Nugraha
Artikel ini dapat diakses melalui : https://jurnal.uns.ac.id/yustisia/article/view/79345/pdf
