The Principle of Utility in Revoking a Bankruptcy Adjudications in Bakruptcy Law

Abstract

Abstract   Bankruptcy law regulates the unity of assets due to bankruptcy adjudications, as stipulated in Article 64 paragraph (1) of the Bankruptcy Law, which establishes that "The bankruptcy of a husband or wife who is married under a unity of assets shall be treated as the bankruptcy of that unity of assets." However, bankruptcy law does not yet address the unity of assets that remain undivided due to divorce, and the case where a husband or wife who has divorced is declared bankrupt. The bankruptcy orders against these distinct legal subjects have been filed in separate commercial courts, indicating that they are indeed separate legal subjects. The question arises whether the undivided unity of assets can undergo a consolidation of bankrupt assets for both parties in separate cases. Drawing from Article 2 paragraph (1) of the Bankruptcy Law, which stipulates that "A debtor who has two or more creditors that remain unpaid and one of them has fallen due may be declared bankrupt," we inquire whether this principle can be applied. Likewise, based on the principle of integrity and the absence of provisions regarding undivided shared assets, this study adopts a generic legal approach. This research employs a normative methodology with the analytical framework of Kees Schuit's legal system theory and the goal theory of law, founded on the three general principles of Gustav Radbruch: certainty, utility, and justice. In conclusion, this research possesses prescriptive value in the realm of legal scholarship, particularly within the scope of bankruptcy law.   KEYWORDS: Principle of Justice, Undivided Shared Assets, Bankruptcy Adjudications