Warning Letter As An Evidence Letter In The Simple Evidence Process In Bankruptcy Cases

Bankruptcy as regulated in Article 1 Number 1 of Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations (“Bankruptcy Law”) is a general confiscation of all assets of a bankrupt debtor whose management and settlement is carried out by a curator under the supervision of a supervisory judge. In bankruptcy cases, judges always determine the fulfillment of the conditions for bankruptcy as contained in Article 2 paragraph (1) of the Bankruptcy Law to decide whether a debtor, or an individual or a legal entity, is in a state of bankruptcy.

Article 2 paragraph (1) of the Bankruptcy Law stipulates as follows:

"A debtor who has two or more creditors and does not pay off at least one debt that has matured and can be collected, is declared bankrupt by a court decision, either at his own request or at the request of one or more creditors."

In the Bankruptcy Process itself, simple evidence is required and shall be proven by facts regarding the existence of two or more creditors and there are debts that are matured and collectible which has not been paid in full by the debtor. This requirement of a simple evidentiary, in principle, demands that for an application for bankruptcy to be granted, the Petitioner must be able to provide evidence that can show that the debtor as the Respondent has fulfilled the requirements in Article 4 paragraph (1) of the Bankruptcy Law, namely the requirement for debt which has been due and collectible and the existence of two or more creditors.

To prove the element that the debtor has the debt that can be collected, the creditor may prove that he has given a warning to the debtor to pay his obligations or debts within a certain period of time, but the debtor has not paid his obligations. The warning shall be carried out in written form by a warning letter. Therefore, the warning letter may be used as evidence in the simple evidence process of bankruptcy cases. If the evidence of the existence of the debt is complicated and difficult or still causes a dispute, then it does not meet the requirements of simple proof in the bankruptcy case process.

Article 1238 of the Civil Code states as follows:

“The debtor shall be deemed in default, either by an order or other similar deed, or pursuant to the obligation itself, where such obligation stipulates that the debtor shall be in default, upon failure to deliver within the stipulated time period.”

The submission of the warning letter also serves as the fulfillment of evidence that the creditor has warned the negligent debtor by giving a specified time to fulfill his obligations before, which also may prove that the debtor already has a debt that is due and can be collected. By not fulfilling the demands or ignoring the demands of the warning letter addressed to the debtor or party who is in default, it may indicate that the debtor is in a situation where he cannot pay his obligations or debts. Then the creditor or the party whose rights are not fulfilled may apply for further legal measures, one of which is by filing a bankruptcy application through the competent commercial court and using the warning letter as evidence in court.

Thus, the explanation above is a brief description of the Warning Letter as an evidence letter in the Simple Evidence process in Bankruptcy Cases. If you are interested in knowing more about the warning letters, you can contact our law office, Suria Nataadmadja & Associates Law Firm.

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