scholarly journals THE DOCTRINE OF PIERCING THE CORPORATE REVIEW IN THE COURT DECISION NO. 656/PDT.G/2015/PN.MDN

2021 ◽  
Vol 2 (2) ◽  
pp. 73-84
Author(s):  
Abdul Rahman Praja Negara
Keyword(s):  
Limited Liability ◽  
Fiduciary Duty ◽  
Court Decision ◽  
District Court ◽  
Bad Faith ◽  
Conceptual Approach ◽  
Personal Gain ◽  
Faith Based ◽  
The Board Of Directors ◽  
Piercing The Corporate Veil

Limited Liability Company (Ltd.) or Perseroan Terbatas (PT) is a legal entity in Indonesia that constitutes a capital alliance formed by an agreement that features a limited liability principle. Limited liability is a principle that limits the responsibility of shareholders to the risk of the Company. However, the principle of limited liability is frequently misapplied, as shareholders look for ways to protect themselves from the risk of more significant losses, to take advantage of all company profits for personal gain. Shareholders who abuse the principle of limited liability for personal gain, on the other hand, will be subject to the Piercing the Corporate Veil doctrine. This doctrine imposes the transfer of liability for personal losses to shareholders who cause harm to the company in bad faith. Based on this understanding, this paper seeks to comprehend the application of the Piercing the Corporate Veil doctrine by analyzing Medan District Court Decision Number: 656/Pdt.G/2015/PN.Mdn. The research method used in this study was normative legal research reviewed with a statute approach and a conceptual approach. The conclusion drawn from the problem is as follows: the regulation regarding the Piercing the Corporate Veil doctrine is borne not only by shareholders but also by the Board of Directors and the Board of Commissioners who fail to implement the principles of fiduciary duty of skill and care. Furthermore, in the case of 656/Pdt.G/2015/PN.Mdn, the judge considered the provisions of Article 3 paragraph (2) of the UUPT in implementing the Piercing the Corporate Veil Doctrine by punishing the Defendants jointly and severally to indemnify the Plaintiff.

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

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. 

scholarly journals Penerapan Asas Piercing The Corporate Veil: Perspektif Tanggung Jawab Direksi Perseroan Terbatas

2018 ◽  
Vol 1 (1) ◽  
pp. 45
Author(s):  
Putri Sari Harahap ◽  
Tumanggor Tumanggor
Keyword(s):  
Board Of Directors ◽  
Common Law ◽  
Descriptive Analysis ◽  
Secondary Data ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Legal Research ◽  
The Board Of Directors ◽  
Piercing The Corporate Veil ◽  
The Veil

<p>Piercing The Corporate Veil principle is a common law doctrine that teaches about the veil special breakout company (corporate veil) covering the Board of Directors and other organs in running the company does not fit or have violated the principle of fiduciary duty (good faith) to the intent and purpose of the company.This type of research in this thesis is a normative legal research means tend to use secondary data in the form of primary legal materials, secondary law and tertiary  legal materials. To collect the data in this research is a stud y done by the descriptive analysis. The resulted in losses for both the company and third parties, First Defendant's actions can be categorized  as a tort (onrechtmatige daad) under Article 1365 of the Civil Code. In the verdict the judge in his ruling has been applying the principle of piercing the corporate veil but does not necessarily resolve the matter of debts between the Compa- ny (Plaintiff) with rights holders of promissory notes "mayofield notes" or the Board of Directors (Defendant 1) with the holders of promissory notes " mayofield note.</p><p>Keywords: Piercing the corporate veil, directors fiduciary duty</p>

scholarly journals PHILOSOPHICAL FOUNDATION OF RELIGIOUS COURT COMPETENCE TOWARDS ENCUMBRANCE RIGHT EXECUTION

2018 ◽  
Vol 18 (2) ◽  
pp. 222
Author(s):  
Abd. Shomad ◽  
Rahadi Wasi Bintoro
Keyword(s):  
Law Enforcement ◽  
Dispute Resolution ◽  
Islamic Law ◽  
Court Decision ◽  
District Court ◽  
Philosophical Foundation ◽  
Conceptual Approach ◽  
Historical Approach ◽  
Legal Relationship

Religious court as forefront in economic sharia dispute resolution in litigation has not ideal place to perform their duty since there are still regulation conflicts such as implementation of encumbrance right execution which still becomes a domain in district court. As explained, this article discusses phi-losophical foundation of Religious Court competence to resolve economic sharia issues. In regard to this, conceptual approach, law approach and historical approach are respectively used. Based on the analysis, basic competence of religious court is Islamic personality principle which carries the use of Islamic law elements (sharia principle) in its legal relationship. From the analysis the implication is drawn that as long as a dispute belongs to economic sharia, then it is Religious Court which is com-petent to handle including court decision.Keywords: law enforcement, economic sharia dispute, absolute competence, court decision implementation

DISSENTING OPINION PUTUSAN SENGKETA MEREK PIERRE CARDIN INDONESIA MELAWAN PIERRE CARDIN PERANCIS DALAM KAJIAN HUKUM ISLAM: Studi Putusan Mahkamah Agung Nomor 557 K/Pdt.Sus-HKI/2015

JURISDICTIE ◽  
2017 ◽  
Vol 8 (1) ◽  
pp. 91
Author(s):  
Masrifatun Mahmudah
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Bad Faith ◽  
Conceptual Approach ◽  
Trademark Law ◽  
The Supreme Court

<p>This article intents to examine the dissenting opinion in the judges consideration on the Supreme Court Decision No. 557 K/Pdt.Sus-HKI/2015. This article is normative research with statute approach dan conceptual approach. The legal material on this research consist of primery legal materials namely Law No. 15 of 2001 on Trademark and Supreme Court Decision No. 557 K/Pdt.Sus-HKI/2015, while the secondary legal materials are books, journals, research related to trademarks. The judge decide to reject the application of Pierre Cardin because the petition of Pierre Cardin has passed a period of five years from the registration of Pierre Cardin Indonesia. However, the conclusion of this study revealed that Pierre Cardin entitled to be protected because it is a well-known mark. Finally, Pierre Cardin Indonesia has violeted the terms of article 4 jo article 6 paragraph (1) letter b of Trademark Law because he has a bad faith and had imitated the well-known mark.</p>

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

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,

scholarly journals KONTRAK PERSEROAN TERBATAS YANG MENGANDUNG TINDAKAN ULTRA VIRES

2021 ◽  
Vol 4 (1) ◽  
pp. 79-82
Author(s):  
Yoel Bello ◽  
Zulkifli Makkawaru ◽  
Abd. Haris Hamid
Keyword(s):  
Board Of Directors ◽  
Limited Liability ◽  
District Court ◽  
Limited Liability Company ◽  
The Board Of Directors ◽  
The Right

Kegiatas usaha perseroan terbatas dilaksanakan oleh organ perseroan terbatas yaitu Direksi perseroan terbatas, Direksi dapat mewakili perseroan terbatas untuk melakukan kontrak dengan pihak terkait. Tindakan mewakili Perseroan Terbatas oleh Direksi harus sesuai dengan aturan sebagaiman dalam Undang-Undang No. 40 Tahun 2007 Tentang Perseroan Terbatas atau yang telah ditentukan dalam Anggaran Dasar Perseroan Terbatas. Apabilan tidakan Direksi Perseroan Terbatas  melaksanakan Kontrak yang dapat merugikan Perseroan karena bertentangan dengan Undang-Undang No. 40 Tahun 2007 Tentang Perseroan Terbatas atau yang telah ditatur dalam Anggaran Dasar Perseroan Terbatas maka kontrak yang dibuat mengandung Ultra Vires. Jika Direksi melakukan tindakan Ultra Vires maka sesuai dengan Pasal 61 Undang-Undang No. 40 Tahun 2007 tentang Perseroan Terbatas, kepada Pemegang sahan berhak mengajukan Gugatan terhadap Perseroan ke Pengadilan Negeri. Limited liability companies are carried out by Directors of limited liability companies. The directors can represent limited liability companies to enter into contracts with related parties. The act of representing a Limited Liability Company by the Board of Directors must be in accordance with the provisions in Law No. 40 of 2007 concerning Limited Liability Companies or those stipulated in the Articles of Association of Limited Liability Companies. If the actions of the Board of Directors of a Limited Liability Company implement a Contract that could be detrimental to the Company because it is contrary to Law No. 40 of 2007 concerning Limited Liability Companies or those stipulated in the Articles of Association of Limited Liability Companies, the contracts made contain Ultra Vires. If the Board of Directors carries out Ultra Vires actions, in accordance with Article 61 of Law No. 40 of 2007 concerning Limited Liability Companies, the shareholders have the right to file a lawsuit against the Company to the District Court.

scholarly journals Tanggung Jawab Direksi atas Terjadinya Pailit Perseroan Terbatas

2020 ◽  
Vol 4 (1) ◽  
pp. 83
Author(s):  
Antonius Faebuadodo Gea ◽  
Hirsanuddin Hirsanuddin ◽  
Djumardin Djumardin
Keyword(s):  
Limited Liability ◽  
Company Law ◽  
Limited Liability Company ◽  
Conceptual Approach ◽  
The Board Of Directors ◽  
Approach Method ◽  
Separate System ◽  
Accountability Mechanism ◽  
The Law ◽  
Legal Consequences

This research was conducted to find out how the directors' accountability mechanism caused by an error or negligence caused the limited company to go bankrupt and how the legal consequences on the bankruptcy of a limited liability company. This type of research was classified as a normative legal research or also called doctrinal research, namely research that examined the law as a separate system that was separate from various other systems in society so as to provide a boundary between the legal system with other systems. The approach method used was the statutory approach; and Conceptual Approach. In principle, the Board of Directors was not personally responsible for acts committed for and on behalf of the company based on its authority. The scope of conduct that would be personally accounted for by the directors of the company was negligence because the directors did not fulfill the contents of the agreement and mistakes because the directors commit acts against the law. Bankruptcy of a Limited Liability Company was the bankruptcy of itself, not the bankruptcy of its management, even though the bankruptcy was due to the negligence of its management. So that management should not be held liable jointly for any losses due to negligence and could only be held accountable if the company's assets were not sufficient to cover losses due to bankruptcy Article 90 paragraph (2) of the Limited Liability Company Law).

scholarly journals Regulation of Foreigner Stay Permit as Director of Limited Liability Company and Investor in Foreign Investment

2021 ◽  
Vol 8 (2) ◽  
pp. 89-100
Author(s):  
Tri Sutjiati ◽  
Ida Ayu Sadnyini
Keyword(s):  
Foreign Worker ◽  
Limited Liability ◽  
Foreign Workers ◽  
Limited Liability Company ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Presidential Decree ◽  
The Board Of Directors ◽  
Ideal Framework

Based to Article 10 Paragraph (1) on Regulation Ministry of Manpower Number 10 Year 2018 Concerning Procedure of Employ Foreign Worker says that employer of the foreign worker is not required to possess any EPP (working permit) to employ foreign workers who are shareholders with the position of the board of directors or board of commissioners, as it is stated before on Article 10 Paragraph (1) Presidential Decree No. 20 Year 2018 Concerning Foreign Worker. Nevertheless, the facility for investors to possess stay permits in Indonesia which is mentioned in Article 22 Paragraph (3), Regulation of Ministry of Justice and Human Rights Number 51 Year 2016 Concerning Change of Regulation Number 24 Year 2016 Concerning Technical Procedures for Application and Issuance of Visit Visas and Limited Stay Visas, says that the investor prohibited working. This study aims to investigate the procedure and the regulations that govern temporary stay permits of directors and foreign investors in Indonesia. The method used in this study is normative legal research and meanwhile, statute approach and conceptual approach are used as the approach of this study. The results of this study showed that 1) higher norms govern action, as to create lower norms, governs realization of action. Presidential Decree has a higher position in the hierarchy from Ministry Regulations. 2) ideal framework of statutory regulations shall consist of a balance portion of justice, legal certainty and finality.  

scholarly journals IMPLIKASI HUKUM TERHADAP AKAD YANG MEMUAT KLAUSUL PENYELESAIAN SENGKETA PERBANKAN SYARIAH MELALUI PENGADILAN NEGERI PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR 93/PUU-X/2012

SASI ◽  
2020 ◽  
Vol 26 (3) ◽  
pp. 286
Author(s):  
Rahman Hasima
Keyword(s):  
Dispute Resolution ◽  
Research Method ◽  
The State ◽  
Court Decision ◽  
District Court ◽  
Islamic Banking ◽  
Constitutional Court ◽  
Conceptual Approach ◽  
Legal Implications ◽  
Descriptive Qualitative

This research aims to determine the legal implications of the agreement on which the sharia banking dispute resolution clause was submitted through the state court's post-decision of the Constitutional Court No. 93/PUU-X/2012. The research method used normative research with a statute approach and a conceptual approach and analyzed descriptive qualitative. The results of the study show that the contract that contains the clause for the settlement of Islamic banking disputes through the District Court after the Constitutional Court decision has the implication of being null and void because it contradicts the contract or causa that is lawful, so that the parties make an addendum so that no future disputes occur.

scholarly journals Pengaturan Kewenangan, dan Tanggung Jawab Direksi Dalam Perseroan Terbatas (Studi Perbandingan Indonesia dan Australia)

2013 ◽  
Vol 2 (1) ◽  
Author(s):  
Shinta Ikayani Kusumawardani
Keyword(s):  
Comparative Study ◽  
Board Of Directors ◽  
Comparative Method ◽  
Limited Liability ◽  
Fiduciary Duty ◽  
Limited Liability Company ◽  
Company Limited ◽  
Fiduciary Obligations ◽  
The Board Of Directors ◽  
Comparative Results

Research on: The Rules Regarding  The Powers and Responsibilities Of Directors In A Limited Liability Company (Comparative Study of Indonesia and Australia). As for the issues discussed in this study related to the application of the authority of the board of directors in the management of a limited liability company under the principle of fiduciary duty Australia comparison of Indonesia can not be separated from the authority granted will cause responsibility that must be borne by the company’s board of directors in managing and also the characteristics of the type of responsibility of Directors This study uses normative juridical approach. Juridical Approaches to run whether the provisions of law relating to kewenagan concrete and responsibilities of the Board of Directors in the management Company Limited Comparative Study of Indonesia and Australia, while Normative is the cover of the principles of law, comparative law, the elements and factors related to authority and responsibility of the Company's Board of Directors in the management of one heart-to-day. This study on Duties and Responsibilities of Directors is normative legal research that emphasizes the study of literature. The purpose of this research is to know the duties and responsibilities of the Board of Directors of Limited Liability Company under the law. Data analysis was performed using the comparative method of qualitative. From the results of this analysis are expected to obtain an accurate picture and understanding of the duties and responsibilities of the Board of Directors of Limited Liability Company. To this effect, a comparison of the authority and responsibilities of the Board of Directors in the management of the Company as the Company's assessment of body organ is the comparison between the authority of the Board of Directors in Indonesia and in Australia the comparative results indicate that the system of regulation in Indonesia and Australia are more inclined to use the model and not a model enabling mandatory because it is based by the condition of the structure of capital ownership. Fiduciary obligations, particularly on legislation in both Indonesia and Australia appear as incomplete law and need to be interpreted by the fiduciary. The main essence of this comparison as the basis for further transplants Indonesia that fiduciary obligations may fruitfully dalamn Handling Company Limited.

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