Prudential Execution Parade: Auction of Executory Title at the Metro District Court

Abstract

Article 6 of Law Number 4 of 1996 grants the first mortgage holder the right to sell the collateral on its own authority, while Article 14 attaches executorial force to the Mortgage Certificate, whose implementation follows Article 224 HIR and therefore requires a court order. Existing scholarship has mapped this norm conflict thoroughly but has not explained how first-instance courts actually resolve it in concrete cases. This study asks how auctions based on an executorial title are implemented in mortgage execution and what impedes their effectiveness. It uses a normative-empirical method combining statutory analysis with interviews at the Metro District Court Class IB. The study finds that execution proceeds through an execution request, aanmaning, execution seizure, an auction order, and an auction conducted by the KPKNL. Its principal finding is that the preference for fiat executie is driven not by normative necessity but by mitigation of the risk that the auction will be annulled, a phenomenon this article terms the prudentialisation of parate executie, which secures legal certainty at the cost of the simple, swift and low-cost execution the statute intended. Mapping six impediments onto Soekanto’s framework shows that only one requires legislative amendment.