Perlindungan Hukum Terhadap Pihak Ketiga Akibat Direksi Melakukan Tindakan di Luar Anggaran Dasar Perseroan Terbatas

Company carrying out actions outside the articles of association can basically be explained from the idea that the principles outside of these articles of association are generally accepted doctrines. In this case, sometimes there are problems that occur, so legal protection for third parties is very necessary in overcoming actions outside the articles of association of the limited liability company. The purpose of this study is to reveal the legal protection of third parties in the case of directors taking actions outside the articles of association of a limited liability company in an effort to restore the rights of third parties for actions by directors outside the articles of association of a limited liability company (PT). The type of research applied in this research is normative research. The sources of legal materials used are primary and secondary legal sources. Techniques for collecting legal materials by studying document recording. After the legal material is collected, it is then analyzed qualitatively. The results of the study reveal that in Indonesia it is possible to implicitly state the Limited Liability Company Law, acknowledge and accept the Doctrine outside the articles of association of the Limited Liability Company. In addition, there are also some grounds that can be used as an alibi to provide protection against third parties. These basics include the Principle of Good Faith, the Pacta Sun Servanda Principle and the Doctrine outside the Modern constitution. By relying on these basics, preventive legal protection and repressive legal protection can be provided.

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Tanggung Jawab dan Perlindungan Hukum Direksi dalam Pengurusan Perseroan Terbatas

Undang Jurnal Hukum ◽

10.22437/ujh.3.1.107-137 ◽

2020 ◽

Vol 3 (1) ◽

pp. 107-137

Author(s):

Raffles Raffles

Keyword(s):

Legal Protection ◽

Limited Liability ◽

Company Law ◽

Good Faith ◽

Limited Liability Company ◽

Business Judgment Rule ◽

The Board Of Directors ◽

Personal Accountability ◽

The Individual ◽

Personal Liability

This article discusses the responsibilities of directors and their legal protection in managing a limited liability company. The responsibility of the directors in managing a limited liability company as regulated in the 2007 Company Law is related to the duties and authority to run the management of the company for the benefit of the company and in accordance with the aims and objectives of the company. To carry out the management of the company, the directors are authorized to carry out the management of the company in accordance with policies deemed appropriate, within the limits specified in the 2007 Company Law and/or articles of association. The responsibility of members of the directors for the company’s losses can be seen from the nature of the responsibility is personal and collective. The directors’ liability is personal if the loss suffered by the company is due to an error or negligence of the individual members of the board of directors. The responsibility of the directors is collective if the company’s losses are caused by an error or negligence in the board’s decision or action. Legal protection for directors in company management is provided if the management is based on good faith and prudence, which is recognized as the business judgment rule doctrine. Basically, directors are responsible for all actions and decisions they make, even personal accountability. However, directors can avoid personal liability if they can prove the basis and reasons and are based on good faith and caution. Abstrak Artikel ini membahas tanggung jawab dan perlindungan hukum direksi dalam pengurusan perseroan terbatas. Pertanggungjawaban direksi dalam pengurusan perseroan terbatas sebagaimana diatur dalam UUPT Tahun 2007 terkait dengan tugas dan wewenangnya menjalankan pengurusan perseroan untuk kepentingan perseroan dan sesuai dengan maksud dan tujuan perseroan. Untuk menjalankan pengurusan perseroan, direksi berwenang menjalankan pengurusan perseroan sesuai dengan kebijakan yang dipandang tepat, dalam batas yang ditentukan dalam UUPT Tahun 2007 dan/atau anggaran dasar. Pertanggungjawaban anggota direksi atas kerugian perseroan dilihat dari sifat pertanggungjawabannya bersifat pribadi dan kolektif. Pertanggungjawaban direksi bersifat pribadi apabila kerugian yang dialami perseroan disebabkan kesalahan atau kelalaian individu anggota direksi. Pertanggungjawaban direksi bersifat kolektif apabila kerugian perseroan diakibatkan adanya kesalahan atau kelalaian dalam keputusan atau tindakan dewan direksi. Perlindungan hukum terhadap direksi dalam pengurusan perusahaan diberikan jika pengurusan tersebut didasarkan pada itikad baik dan hati-hati, yang dikenali sebagai doktrin business judgement rule. Pada dasarnya direksi bertanggung jawab atas segala tindakan dan keputusan yang dibuatnya, bahkan pertanggungjawaban pribadi. Namun demikian, direksi dapat terhindar dari tuntutan pertanggungjawaban secara pribadi apabila dapat membuktikan dasar dan alasannya dan didasarkan pada itikad aik dan hati-hati.

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Responsibilities of the Board of Directors in the Bankruptcy of the Limited Liability Company

JURNAL RECTUM: Tinjauan Yuridis Penanganan Tindak Pidana ◽

10.46930/jurnalrectum.v2i1.410 ◽

2020 ◽

Vol 2 (1) ◽

pp. 66

Author(s):

Padriadi Wiharjokusumo ◽

Novita Romauli Saragih

Keyword(s):

Qualitative Analysis ◽

Board Of Directors ◽

Criminal Liability ◽

Limited Liability ◽

Company Law ◽

Good Faith ◽

Limited Liability Company ◽

Full Responsibility ◽

The Board Of Directors ◽

Data Source

Article 97 paragraph (1) of the Company Law requires each member of the Board of Directors to be required in good faith and full responsibility to undertake the supervision of the company for the interests and business of the company. This implies the Board of Directors is liablefor each management and representation of the company in the company’s framework in pursuing its purposes and objectives.This researchexaminesthe responsibilities of the board of Directors in the bankruptcy of the Limited Liability Company based on Law No. 40 of 2007. This research was conducted through a normative juridical approach.The data source of this research was gained from the library study. Then it was analyzed using the qualitative analysis which depicts and dissects the significant information.The conclusion of this research is thatthe responsibilities of the Board of Directors in Bankruptcy Limited Liability Company based on Law No. 40 of 2007 comprises 2 (two) aspects, in particular; civil liability and criminal liability.

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Corporate Contract and an Agreement on the Implementation of the Rights of Members of Society: Some Problems of Correlation

Journal of Russian Law ◽

10.12737/17230 ◽

2016 ◽

Vol 4 (1) ◽

pp. 0-0

Author(s):

Владимир Камышанский ◽

Vladimir Kamyshanskiy

Keyword(s):

Critical Analysis ◽

Legal Protection ◽

Limited Liability ◽

General Meeting ◽

Third Parties ◽

Limited Liability Company ◽

Corporate Rights ◽

Legislative Regulation ◽

Natural Way

The article provides a critical analysis of legislative regulation of the corporate agreement and an agreement on the implementation of the rights of members of a limited liability company. It is alleged that the corporate contract has undoubted relevance and usefulness to the participants of companies, as it allows to regulate relations in the implementation of corporate rights is not a natural way, and on a contractual basis, recognized by the parties and provide legal protection for the parties to the contract. It stands out as a number of circumstances that require legislative authorization and refinement in the process of enforcement of a limited liability company. Among the outstanding legislator before the end of the problems include: the problem of correlation of the content of the agreement on the implementation of the rights of the parties and the agreement on the establishment of the company; the problem of correlation of the contract on the implementation of the rights of the participants and the Company Charter, decisions of the general meeting; the problem of succession of the contract on the implementation of the rights of participants; the problem of awareness of other members of the Company and third parties about the agreement on the implementation of the rights and conditions.

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ANALISIS YURIDIS PEMBERHENTIAN ANGGOTA DIREKSI DENGAN TANPA DIDAHULUI ADANYA PEMBELAAN DIRI DALAM RUPS [JURIDIC ANALYSIS REGARDING TERMINATION OF THE BOARD OF DIRECTORS WITHOUT SELF DEFENSE IN THE GENERAL MEETING OF SHAREHOLDERS]

Notary Journal ◽

10.19166/nj.v1i2.3881 ◽

2021 ◽

Vol 1 (2) ◽

pp. 133

Author(s):

Felicia Darlene

Keyword(s):

Board Of Directors ◽

Legal Protection ◽

Limited Liability ◽

General Meeting ◽

Company Law ◽

District Court ◽

Limited Liability Company ◽

Self Defense ◽

The Board Of Directors ◽

Bahasa Indonesia

One of the sectors being developed by the Indonesian government is economic growth, which impact on increasing Limited Liability Companies. Provisions that contain procedures for managing a Limited Liability Company are regulated in Law Number 40 of 2007 concerning Limited Liability Companies (UU PT), one of which is the procedure for dismissing members of the Board of Directors. Article 105 of the Company Law stipulates that the dismissal of a member of the Board of Directors is taken after the person concerned is given the opportunity to defend himself. Furthermore, regarding legal protection for the dismissal of members of the Board of Directors who violate the provisions of the Company Law. The Law on Judicial Power regulates the absolute competence of each judiciary. With absolute competence, each judicial body has different jurisdiction to judge. The method used in this study is normative juridical. The results and conclusions of this study are that the dismissal of members of the Board of Directors without any prior self-defense in the GMS is invalid if the members of the Board of Directors object to his dismissal. Legal protection for members of the Board of Directors who are dismissed not in accordance with the provisions of the Company Law is to file a lawsuit to the District Court. BAHASA INDONESIA ABSTRACT:Salah satu sektor yang sedang dikembangkan oleh pemerintah Indonesia adalah pertumbuhan ekonomi, yang berdampak pada meningkatnya Perseroan Terbatas. Ketentuan yang memuat tata cara pengurusan Perseroan Terbatas diatur dalam Undang-Undang Nomor 40 Tahun 2007 tentang Perseroan Terbatas (UU PT), salah satunya adalah tata cara pemberhentian anggota Direksi. Dalam Pasal 105 UU PT diatur bahwa keputusan pemberhentian anggota Direksi diambil setelah yang bersangkutan diberi kesempatan untuk membela diri. Selanjutnya mengenai perlindungan hukum atas pemberhentian anggota Direksi yang melanggar ketentuan UU PT. Undang-Undang Kekuasaan Kehakiman mengatur mengenai kompetensi absolut setiap peradilan. Dengan adanya kompetensi absolut, maka setiap badan peradilan mempunyai yurisdiksi mengadili yang berbeda-beda. Metode yang digunakan dalam penelitian ini adalah yuridis normatif. Hasil dan kesimpulan dari penelitian ini adalah pemberhentian anggota Direksi dengan tanpa didahului adanya pembelaan diri dalam RUPS adalah tidak sah jika anggota Direksi keberatan atas pemberhentian dirinya. Perlindungan hukum bagi anggota Direksi yang diberhentikan tidak sesuai dengan ketentuan UUPT adalah mengajukan gugatan ke Pengadilan Negeri.

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Third Parties’ Legal Protection over Agreed Authorized Capital Amount by Founders in Limited Liability Companies

Lentera Hukum ◽

10.19184/ejlh.v6i1.9676 ◽

2019 ◽

Vol 6 (2) ◽

pp. 173

Author(s):

Xavier Nugraha ◽

Krisna Murti ◽

Saraswati Putri

Keyword(s):

Government Regulation ◽

Legal Protection ◽

Limited Liability ◽

Third Parties ◽

Third Party ◽

Limited Liability Company ◽

The Third ◽

Ease Of Doing Business ◽

The Government ◽

Authorized Capital

On July 14, 2016, the Government enacted the Government Regulation Number 29 of 2016 regarding Amendments in Authorized Capital of a Limited Liability Company (LLC). Article 1 paragraph (3) of the regulation showed that the amount of authorized capital was submitted to the agreement of the LLC founders. This regulation was issued in order to increase Indonesia’s ‘ease of doing business’ rank, especially in ‘starting a business.’ This article aims to examine the legal protection for the third party over the amount of authorized capital based on the agreement of the LLC founders using the study of dogmatic law. Regulations referenced are Law Number 40 of 2007 regarding Limited Liability Companies and Government Regulation Number 29 of 2016 regarding Amendments in Authorized Capital of LLC. Based on the results of this study, it was found that the determination of authorized capital based on the agreement of LLC founders has neglected the protection of the third parties. This manifested particularly in protecting minority investors and resolving insolvency. Through the enactment of authorized capital based on the agreement of the founders, the mechanism of preventive and repressive legal protection to the third parties are assumed to be eliminated. Keywords: The Authorized Capital, Limited Liability Company, Agreement, Legal Protection.

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PROGRESIFITAS HUKUM PENGEMBALIAN DEVIDEN SAHAM INTERIM PERSEROAN TERBATAS PADA UUPT NO.40 TAHUN 2007

Legal Standing Jurnal Ilmu Hukum ◽

10.24269/ls.v5i1.3552 ◽

2021 ◽

Vol 5 (1) ◽

pp. 1

Author(s):

Bella Mutiara Wahab

Keyword(s):

Board Of Directors ◽

Research Method ◽

Stock Exchange ◽

Limited Liability ◽

Company Law ◽

Limited Liability Company ◽

Conceptual Approach ◽

Dividend Distribution ◽

The Board Of Directors ◽

Annual Book

AbstractProgressive law must place the law in a very close position with the law's community or stakeholders. This position is called responsive, progressive law and is always associated with stakeholders' reality and needs to create justice and happiness as law aspired itself. Also, progressive law emphasizes social integration to overcome public moral insularity.Starting from the viewpoint of progressive law, the author looks at the laws and regulations that discuss the return of interim dividends as stated in the Limited Liability Company Law No. 40 of 2007, article 72, article 72 states that companies allow rules related to dividend distribution in a temporary (interim) way. The article is then interpreted as that if the company has positive profits, the company is allowed to distribute dividends before the company closes the book at the end of the year, provided that the board of directors officially announces the distribution with the approval of the GMS that the positive profits obtained by the company before closing the book will come as dividends interim. As a result, the company competes to distribute interim dividends to increase and show its credibility to investors. It was recorded on the Indonesian stock exchange (IDX) that in September 2020, 73 companies distributed interim dividends.However, article 72 paragraph 5 of the Limited Liability Company Law No. 40 of 2007 explains that if after the company distributes interim dividends to shareholders and at the end of the closing of the annual book the company suffers a loss, the shareholders must return the dividends they have received. If the shareholder does not return it, the directors and commissioners are jointly responsible for covering the company's losses.This viewpoint is the basis for finding the location of the value and form of legal progressivity regarding the mechanism of interim share dividends in limited liability companies as stated in UUPT No.40 of 2007 Article 72 using a normative research method with a conceptual approach.

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Perlindungan Hukum Pemegang Saham Minoritas Perseroan Terbatas Tertutup dan Keadilan Berdasar Pancasila

SASI ◽

10.47268/sasi.v25i2.222 ◽

2019 ◽

Vol 25 (2) ◽

pp. 199

Author(s):

Mustaqim Mustaqim ◽

Agus Satory

Keyword(s):

Decision Making ◽

Qualitative Data ◽

Legal Protection ◽

Limited Liability ◽

Secondary Data ◽

General Meeting ◽

Voting Rights ◽

Limited Liability Company ◽

Minority Shareholders ◽

Full Control

Legal protection for the majority shareholders is sufficiently guaranteed, especially through the mechanism of the RUPS, but this is not the case for minority shareholders, thus creating an injustice problem for minority shareholders. The purpose of this study is to uncover and find out legal protection for minority shareholders in a limited liability company based on Pancasila justice. This research is normative juridical so it uses secondary data with the law approach and qualitative data analysis. The results showed that the General Meeting of Shareholders did not reflect legal protection for minority shareholders, because in every decision making through the General Meeting of Shareholders and various other decisions based on the attendance quorum about the majority of votes present at the General Meeting of Shareholders. Such matter is detrimental to the interests of minority shareholders because without the presence of minority shareholders, a General Meeting of Shareholders can be held, while minority shareholders also have the same rights and obligations and responsibilities. The majority of shareholders hold a large and full control over the company, resulting in minority shareholders, there is no guarantee to get justice based on Pancasila justice. Therefore, the General Meeting of Shareholders must be held if attended by all shareholders with voting rights present or represented. If this is not the case, the results of the General Meeting of Shareholders may be canceled.

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KEBERADAAN PEMEGANG SAHAM DALAM RUPS DENGAN SISTEM TELECONFERENCE TERKAIT JARINGAN BERMASALAH DALAM PERSPEKTIF CYBER LAW

Jurnal Magister Hukum Udayana (Udayana Master Law Journal) ◽

10.24843/jmhu.2015.v04.i01.p15 ◽

2015 ◽

Vol 4 (1) ◽

Author(s):

Ni Ketut Supasti Dharmawan

Keyword(s):

Limited Liability ◽

General Meeting ◽

Company Law ◽

Limited Liability Company ◽

Legal Subject ◽

Network Problem ◽

Network Problems ◽

Cyber Law ◽

Internet Network ◽

Legal Right

In Indonesia, the General meeting of Shareholder through teleconference mechanism can be conducted under the provision of Article 77 of Law No. 40 of 2007 concerning Limited Liability Company. This teleconferencing mechanism allows all participants to see and to hear each other as well as to participate in the teleconference meeting. There is legal vacuum with regard to position of shareholders in the General Meeting by teleconference mechanism, especially in the case of network problems. However, by analogy with the legal construct of the provisions of Article 90 of the Company Law can be stated that the position of shareholders continues to be recognized as a legal subject who has legal right and has valid votes counted even if the minutes of the meeting have not been signed electronically because internet network problem as long as treatise or the minute of General Meeting of shareholders is made by notarial deed and shall be signed by the Notary who made the deed.

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KEPUTUSAN BISNIS DAN TANGGUNGJAWAB DIREKSI DALAM PRINSIP FIDUCIARY DUTIES PADA PERSEROAN TERBATAS

AT-TIJARAH: Jurnal Penelitian Keuangan dan Perbankan Syariah ◽

10.52490/at-tijarah.v1i2.715 ◽

2019 ◽

Vol 1 (2) ◽

pp. 37-56

Author(s):

Ali Muhayatsyah

Keyword(s):

Board Of Directors ◽

General Principle ◽

Limited Liability ◽

Good Faith ◽

Fiduciary Duty ◽

Limited Liability Company ◽

Fiduciary Duties ◽

Business Judgment Rule ◽

The Board Of Directors ◽

Full Sense

The main party charged with fiduciary duty is the board of directors. In UUPT No. 40/2007 it does not specifically regulate fiduciary duty but rather regulates general principles. From the general principle of fiduciary duty, directors in managing the company must pay attention to the interests of the company above other interests; directors must act in accordance with the aims and objectives of the company (intra vires), and pay attention to the limitations and restrictions determined by the law and the articles of association of the company. In carrying out their duties as directors, they are required to have in good faith and in full sense of responsibility; Directors must carry out their duties diligently, carefully, and smartly and skillfully. Keywords: Directors, Fiduciary Duty, Business Judgment Rule, Limited Liability Company, Abstrak Pihak utama yang dibebankan kewajiban fiduciary duty adalah direksi. Dalam UUPT Nomor 40 Tahun 2007 tidak mengatur secara khusus mengenai fiduciary duty tetapi mengatur prinsip-prinsip umumnya. Dari prinsip umum fiduciary duty makadireksi dalam mengurus perseroan harus memperhatikan kepentingan perseroan di atas kepentingan lainnya;direksi harus bertindak sesuai dengan maksud dan tujuan perseroan (intra vires), serta memperhatikan batasan dan larangan yang ditentukan UU dan anggaran dasar Perseroan. Dalam melaksanakan tugas sebagai direksi, diharuskan memiliki itikad baik (in good faith) dan tanggung jawab (in full sense of responsibility); Direksi harus melaksanakan tugasnya dengan rajin (diligently), penuh kehati-hatian (carefully), dan pintar serta terampil (skillfully). Kata kunci: Direksi, Fiduciary Duty, Business Judgement Rule, Perseroan Terbatas,

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Kepastian Hukum Jumlah Modal Dasar Pendirian Perseroan Terbatas Setelah Berlakunya PP Perubahan Modal Dasar Perseroan Terbatas

Acta Comitas ◽

10.24843/ac.2020.v05.i02.p11 ◽

2020 ◽

Vol 5 (2) ◽

pp. 340

Author(s):

Ida Bagus Putra Pratama ◽

I Made Dedy Priyanto

Keyword(s):

Research Method ◽

Government Regulation ◽

Limited Liability ◽

Company Law ◽

Limited Liability Company ◽

Legal Certainty ◽

Legal Research ◽

Conceptual Approach ◽

Basic Capital ◽

Before And After

Research on legal certainty the amount of basic capital establishment of limited liability company based on the norms of conflict between article 32 paragraph (1) of the limted liability company law concerning "the limited liability company capital of at least Rp 50,000,000.00" with article 1 paragraph (3) of government regulations The limited liability of the company's capital of limited liability concerning "the founding capital of the company is determined by agreement”. 2 problem are formulated: (1) What is the form for deposit of stock capital on the provisions of article 33 of the limited liability company law, (2) How is the legal certainty of the number of basic capital of the limited liability After the validity of government regulation change of the limited liability company. This purpose research is finding form of the deposit of stock capital and the basic capital of the limited liability company before and after enforcement of government regulation of limited liability of the company. The legal research method used normative legal research method with statute approach and conceptual approach. Capital deposits of shares can be made in the form of money and other forms of immovable tangible objects such as land and intangible objects in the form of bill of Rights; and arrangements regarding the underlying capital applicable in the establishment of the limited liability company is Article 1 paragraph (3) of government regulation of the limited liability of the company.

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