Granting of Dependent Rights: A Legal Comparison Between Indonesia and Malaysia

Waruwu, Inoto Saro and Pasaribu, Simon Alex and Napitupulu, Diana R. W. (2025) Granting of Dependent Rights: A Legal Comparison Between Indonesia and Malaysia. TATOHI: Jurnal Ilmu Hukum, 5 (2). pp. 92-103. ISSN 2775-619X

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Abstract

Introduction: The enforcement of security rights plays a crucial role in debt guarantee systems, balancing the interestsof creditors and debtors. Although both countries share a civil law tradition, significant differences exist in their executionmechanisms, particularly regarding the role of the courts, auction procedures, and the protection of debtor rights. InIndonesia, execution procedures are governed by Law Number 4 of 1996 on Mortgage Rights, which allows creditors toinitiate either a parate execution or litigation through court proceedings. In contrast, Malaysia mandates judicialforeclosure for all mortgage enforcements, as regulated under the National Land Code 1965 and the applicable proceduralrules.Purposes of the Research: This study aims to analyze and compare the procedures for executing mortgage objectsbetween Indonesia and Malaysia.Methods of the Research: This research adopts a normative juridical and descriptive-comparative approach byexamining statutory regulations, court decisions, and relevant legal literature from both jurisdictions.Findings of the Research: The findings reveal that Indonesia’s system offers speed and flexibility but poses a higher riskof procedural abuse, while Malaysia’s judiciary-based approach provides greater debtor protection at the cost of increasedtime and legal expenses. The study also identifies practical challenges such as administrative delays, high execution costs,and legal uncertainties. Accordingly, this research recommends strengthening the oversight of execution practices inIndonesia and considering the introduction of a statutory limitation period, as implemented in Malaysia, to ensure abalanced approach between efficiency and justice in mortgage enforcement systems.

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