Parate Execution in Disputes Settlement of Financing Contract with Mortgage Guaranteed on Islamic Banking Practices

Abstract

Disputes settlement of financing contract with guaranteed mortgage after the decision of the Constitutional Court No. 93/PUU-X/2012 requires a follow-up of the existing verdict by conducting execution. Execution implies a forced attempt to actualize rights and/or sanctions. Parate execution is a direct confiscation of mortgage without authorization from the court. Based on the phenomenon, the purpose of this research is to seek a common ground between Islamic principles and national law on the concept of parate execution related to mortgage rights on Islamic banking practices and to know parate execution mechanism in the dispute settlement of the financing contract with the guaranteed mortgage on Islamic banking practices. This research is a socio-legal research using qualitative analysis and philosophical and sociological approach. Primary data was obtained from the results of research in 7 (seven) Religious Court and Supreme Court. As for the results of the research, it was found that the point of contact between Islamic principles in some existing rules with the concept of parate execution related to mortgage rights in Islamic banking practices by making a legal finding (istimbad), using the existing Islamic legal basis and complete it with the rules that apply and developing in Indonesia that is not contrary to Islamic Law. The mechanism of execution of guaranteed mortgages is executed by the Shahibul Maal (creditor/sharia bank) without having to perform the fiat execution to a religious court but simply register the arbitral panel decision to the religious court.