BEYOND EFFICIENCY: ESTABLISHING SOCIAL JUSTICE AS A FUNDAMENTAL AND ETHICAL NECESSITY FOR LEGAL CERTAINTY IN THE EXECUTION OF MORTGAGE RIGHTS

Abstract

This research aims to improve efficiency and create more practical legal certainty in the execution of Mortgage Rights (HT) in Indonesia. This research will redesign the legal framework for the execution of HT guarantees by placing social justice as the primary moral principle, in line with the values ??of Pancasila, replacing the formal approach to legal certainty. This research is a normative legal study with a philosophical approach, and a comparison of cases in HT with the Constitutional Court's ruling on fiduciary guarantees. The results show that excessive emphasis on parate execution (Article 6 of the HT Law) for the sake of efficiency will weaken legal certainty. In practice, this demonstrates lawsuits from debtors demanding substantive justice due to defaults unilaterally determined by creditors. Legal certainty should stem from social justice, namely by providing balanced legal protection for debtors and creditors. This research is supported only by normative data without empirical data on auction implementation and socio-economic impacts. This research provides a philosophical and normative model as a first step towards reforming the HT Law and developing progressive jurisprudence, with social justice as a primary requirement for legal certainty and efficiency. A comparison of the Constitutional Court's ruling on fiduciary guarantees strengthens protection for debtors in mortgages.