CONTRACTUAL FAIRNESS: CONSUMER PROTECTION IN THE EXECUTION OF FIDUCIARY GUARANTEES BASED ON PRINCIPLES OF BALANCED RIGHTS AND ANTI-EXPLOITATION

Abstract

A major structural issue in the implementation of fiduciary guarantees in Indonesia is the disparity between the extensive powers held by creditors and the lack of protection afforded to borrowers. Although the coercive and unilateral enforcement mechanisms for fiduciary guarantees were reformed by Constitutional Court Decision Number 18/PUU-XVII/2019, a significant gap remains between actual practice and constitutional norms. This article examines the regulatory framework for enforcement following the aforementioned Constitutional Court decision, specifically from the perspective of protecting debtors' human rights. The study employs normative legal methods—specifically statutory, conceptual, and comparative approaches. Primary legal sources include the 1945 Constitution, the Fiduciary Guarantee Law, Constitutional Court decisions, and various implementing regulations; secondary sources comprise credible publications. Findings indicate that the implementation of the Constitutional Court decision remains inadequate due to the absence of operational technical regulations, insufficient oversight by the Financial Services Authority, and a lack of appropriate sanctions. Consequently, forced execution remains prevalent. The proposed legal reconstruction encompasses four simultaneous dimensions: institutional (strengthening the Financial Services Authority and the Consumer Dispute Resolution Agency); procedural (mandatory mediation and simplified court rulings); remedial (statutory damages, class actions, and non-material compensation based on Hifz al-Ird); and substantive (redefining default based on the doctrine of hardship and the obligation to provide notification in a dignified manner).