Criminal Liability of Fraudulent Debtors in the Framework of Actio Pauliana: A Doctrinal and Normative Reconstruction in Indonesian Law

Abstract

Debtor misconduct in the form of asset transfers aimed at defeating creditor claims presents a serious challenge to the effectiveness of Indonesia’s civil and criminal legal systems. While actio pauliana, as codified in Article 1341 of the Indonesian Civil Code, provides a civil remedy to annul such prejudicial acts, its operation remains disconnected from the criminal law framework. This article examines the doctrinal gap between civil annulment and penal enforcement, particularly in cases where debtor conduct reflects structured and intentional deception. Using a normative legal research methodology supported by comparative analysis of the Dutch and Singaporean legal systems, this study explores the overlap between civil bad faith and criminal fraudulent intent. The findings reveal that Indonesian courts and prosecutors have not developed an integrated approach to apply Article 378 of the Penal Code in cases involving debtor fraud, despite the presence of circumstantial indicators such as concealment, collusion, undervaluation, and asset dissipation. This article proposes a dual-track sanction model that allows actio pauliana to operate alongside penal prosecution when debtor conduct meets defined thresholds of criminal intent. The model includes doctrinal integration, procedural connectivity, and institutional reforms involving judges, curators, and law enforcement. It also provides legal safeguards to prevent over-criminalization and ensure proportionality. Ultimately, this study offers a legal reconstruction that aligns creditor protection with principles of justice and deterrence, reinforcing the integrity of Indonesia’s insolvency and commercial enforcement system.