Normative Juridical Reconstruction of Fiduciary Guarantee Regulation in Fair and Legally Certain Leasing Agreements

Abstract

The rapid development of Indonesia’s financial sector has led to the widespread use of leasing (sewa guna usaha) as an alternative financing mechanism beyond conventional banking institutions. The purpose of this study is to analyze the weaknesses of current fiduciary guarantee regulations in leasing arrangements and to propose a normative juridical reconstruction that aligns both concepts within a fair and legally certain framework. This research employs a normative juridical method with a statutory, conceptual, and comparative approach. Data were collected through library research, analyzing primary legal materials such as Law No. 42 of 1999 on Fiduciary Security, the Civil Code, and the Minister of Finance Regulation No. 84/PMK.012/2006 on Financing Companies, as well as secondary sources including scholarly articles and legal commentaries. The results show that the existing regulation of fiduciary guarantee imposition in leasing contracts has not been based on the principles of justice and legal certainty due to the lack of substantive legal norms. The reconstruction proposes the revision of Article 3 in the Minister of Finance Regulation No. 84/2006 by emphasizing that (1) the purchase option (hak opsi) may only be exercised at the end of the lease term, (2) leasing applies exclusively to capital goods and not consumer goods, and (3) fiduciary guarantees can only be applied to assets legally owned by the lessee. The findings of this study contribute to the development of Indonesia’s financial law by harmonizing fiduciary and leasing principles in accordance with Pancasila’s values of justice and moral integrity. This reconstructed legal framework is expected to ensure balanced protection for both lessor and lessee, enhance public trust in financing institutions, and establish a system of leasing regulation that upholds fairness and legal certainty.