ANALYSIS OF
LIMITED LIABILITY COMPANY SUPERVISION IN INDONESIA
|
Abstract This article discusses the supervision of Limited
Liability Companies (PT) in Indonesia. PT is a legal entity established
through an agreement and conducts business activities with divided capital in
the form of shares. The article explains that supervision is carried out to
ensure that PT operates in accordance with applicable laws and regulations.
PT has characteristics such as separation between the company and its owners,
the ability to sue and be sued on behalf of the company, and the right of
shareholders to file lawsuits related to ultra vires acts. The article also
explains that the requirements for establishing PT in Indonesia have
undergone changes, where now PT can be established by one person and can also
be operated by one person. The establishment of PT involves providing
information such as the company's name, registered address, duration of
establishment, purpose and objectives, business activities, capital,
shareholders, and founder's data. PT must obtain legal status from the
Ministry of Law and Human Rights to be recognized as a legal entity. Failure
to obtain approval from the Ministry will result in PT being treated as a
partnership or non-legal entity. The Ministry of Law and Human Rights has the
authority to revoke the license of PT. Financial and tax supervision of PT is
the responsibility of the Ministry of Finance. If the license of PT needs to
be revoked, it must go through the Ministry of Law and Human Rights. Keywords: Limited Liability Companies,
Regulatory Institutions for Limited Liability Companies, and Indonesia. |
INTRODUCTION
Indonesia is a
country that has a civil law legal system. The civil law �legal system itself is a legal system adopted
by Continental Western European states and then applied to all former colonies
of western colonial governments, one example of which is Indonesia (Hardini, 2016; Huda & SH, 2020). The civil law legal system has 3 (three) characteristics, namely
codification, judges who are independent so that they are not bound by the
president, the main source of law in countries that adopt the civil law legal
system is the Law. The following is the hierarchy of legal sources that apply
in Indonesia:
Undang-Undang Kebiasaan Yurisprudensi Traktat Doktrin
Figure 1. Hieraki
Law
In this
hierarchy, the Law is in the highest position, so that every
thing in Indonesia has a Law. One example is Law No. 40 of 2007
concerning Limited Liability Companies (hereinafter referred to as "Law
No. 40 of 2007").
Law No. 40 of
2007 regulates related to limited liability companies in Indonesia, in the Law
explains the procedures until the dissolution of a limited liability company in
Indonesia. The background of the establishment of Law No. 40 of 2007 is due to
demands from the public for the development of the business world in accordance
with the principles of good corporate governance (Lany, 2015). Meanwhile, the purpose of
the establishment of Law No. 40 of 2007 is to improve fast services and legal
certainty (Indonesia, 2007).
The company
itself originally came from an association (Handri
Raharjo, 2012). In a broad sense, the company is an association that does not have
elements of personality and has elements consisting of common interests, common
will, common goals and cooperation (Handri Raharjo, 2012). The association itself is divided into two, namely legal entities and
unincorporated.
Through the chart
above, it can be seen that a company itself is divided into two, companies that
run companies and companies that do not run companies (Chen et al., 2011). A company that runs its own company system is also divided into two,
namely companies that are included as legal entities and companies that are not
legal entities.
One of the
incorporated companies is a limited liability company. Limited liability
companies according to Law No. 40 of 2007 concerning Limited Liability
Companies (hereinafter referred to as "Law No. 40 of 2007") explain
that the definition of a limited liability company itself is as follows (Pangestu & Aulia, 2017):
"A Limited Liability Company,
hereinafter referred to as the Company, is a legal entity that is a capital
partnership, established under an agreement, conducting business activities
with authorized capital entirely divided into shares and meeting the
requirements stipulated in this Law and its implementing regulations.�
Meanwhile,
according to Ahmad Yani and Gunawan Widjaja that the limited liability company
itself is divided into 2 (two) words, between 'Company' and 'Limited', the
company itself has the meaning of a paid-up capital in a limited liability
company where there are shares and while limited is a limited shareholder's
responsibility with the nominal shares owned by the shareholder (Kasih, 2022). A limited liability company is a company established with capital so
that a limited liability company is established by at least 2 (two) people as
shareholders or investors, a limited liability company is established based on
a notarial deed made before a notary who has the authority to make notarial
deeds related to the establishment of a limited liability company.
�� The establishment of a limited liability
company initially has a minimum authorized capital of Rp. 50,000,000 (fifty
million rupiah) and a minimum paid-up capital of 25% (twenty-five percent) of
the authorized capital, these provisions are regulated in Article 32 paragraph
(1) of Law No. 40 of 2007. However, at present, for the minimum authorized
capital provisions depending on the agreement of the parties who want to
establish a limited liability company, the authorized capital provisions
regulated in Law No. 40 of 2007 are no longer the basis for determining the
authorized capital of establishing a limited liability company. The
establishment of a limited liability company initially consisted of 1 (one)
director and 1 (one) person as commissioner. Limited liability companies in
Indonesia have the following characteristics:
First, there is a separation
between a limited liability company and its owner� or also known as separate and
distinct from its owner �where a
limited liability company can own assets in the name of the company, not
requiring the owner's name to be the owner of the asset. These personality
characteristics are regulated in Article 3 paragraph (1) of Law No. 40 of 2007
which reads as follows:
�The Company's
shareholders are not personally responsible for the engagement made on behalf
of the Company and are not responsible for the company's losses exceeding the
shares owned."
Limited liability
companies do not need to bear rent to personal assets if there is a loss in the
limited liability company, this is because there is a separation between the
assets of the limited liability company and the personal property of the owner of
the limited liability company, it is different from firms or all companies that
are not legal entities, for example such as firms and CVs.
�� Second, it can sue and be sued on
behalf of its own limited liability company. Article 98 paragraph (1) of Law
No. 40 of 2007 states that:
�The Board of
Directors represents the Company both in and out of court.�
If a limited
liability company is sued, the directors have the authority to represent the
limited liability company in attending hearings, not only in court proceedings,
but outside the court also a limited liability company directors have the
authority to act on behalf of the limited liability company. Limited liability
companies also have the right to file a lawsuit against a third party if the
third party is suspected of default or unlawful acts (Harahap, 2021).
Third, any shareholder can file a
lawsuit against a limited liability company related to ultra vires.
Ultra vires itself according to the dictionary of English Law is beyond
the power, while according to Yahya Harahap ultra
vires is� an action of directors that
is not in accordance with their duties and responsibilities or beyond their
control (Harahap,
2021). Article 61 paragraph (1)
of Law No. 40 of 2007 stipulates that:
�Every
shareholder has the right to file a lawsuit against the Company to the District
Court if they are aggrieved due to the Company's actions that are considered
unfair and without reasonable reasons as a result of the decision of the GMS,
Board of Directors, and/or Commissioners.�
�� Every country must have a state institution
that supervises all activities of Limited Liability Companies. The supervision
is carried out with the aim of ensuring that the Limited Liability Company runs
in accordance with applicable laws and regulations. Therefore, researchers are
interested in conducting this research with the formulation of the problem to
be discussed, namely: "How is the supervision of Limited Liability
Companies in Indonesia?�
METHOD�� RESEARCH
This study used a normative juridical type of
research. According to Soerjono Soekanto,
normative juridical research is research conducted using secondary data
materials as a fulcrum or research foundation, the secondary data in question
includes laws and regulations, draft laws, previous research results (Soekanto & Mamudji, 2015).
RESULT
AND DISCUSSION
The establishment
of a Limited Liability Company in Indonesia was initially established by a
minimum of 2 people, these requirements are regulated in Article 153A paragraph
(1) of Law No. 40 of 2007 into Article 109 paragraph (5) of Law No. 6 of 2023
concerning the Stipulation of Government Regulations in Lieu of Law No. 2 of
2022 concerning Job Creation into Law (hereinafter referred to as the "Job
Creation Law"). Article 109 paragraph (5) of the Job Creation Law
stipulates that:
�Companies
that meet the criteria for micro and small enterprises can be established by 1
(one) person.�
The purpose of changes
related to the requirements for establishing a Limited Liability Company in
Indonesia is to improve the ease of doing business in Indonesia. The enactment
of the Job Creation Law so that the requirements for registering or
establishing a Limited Liability Company in Indonesia can be capitalized by 1
(one) person and run also by 1 (one) person or also known as
Individual Limited Liability Company (Aziz & Febriananingsih, 2020).
�� The establishment of a Limited Liability
Company by 1 (one) person can basically result in non-fulfillment of Law No. 40
of 2007, namely the element of establishment of a Limited Liability Company
must be established by at least 2 (two) people who make an agreement, the
elements that are violated are the element of partnership in the principle of
capital partnership and the element of agreement in the principle of being
established based on an agreement (Putri,
2020). Before the enactment of
the Job Creation Law, Limited Liability Companies in Indonesia were only known
in one form, unlike the current existence of Individual Limited Liability
Companies.
The establishment
of an Individual Limited Liability Company has been regulated in Government
Regulation Number 8 of 2021 concerning the Company's Authorized Capital and
Registration of Establishment, Change and Dissolution of Companies that Meet
the Criteria for Micro and Small Enterprises (hereinafter referred to as
"PP No. 8 of 2021"). Article 1 paragraph (2) of PP No. 8 of 2021
confirms that the statement of establishment is a format for the establishment
of an Individual Limited Liability Company which is carried out electronically
so that it is stated that it does not require a notarial deed in establishing
an Individual Limited Company (Jaya,
2021). A Limited Liability Company
can be established by Indonesian citizens who are at least 17 (seventeen) years
old and legally capable.
The establishment
of a Limited Liability Company electronically contains a filling format in the
form of information about the name and place of residence of the Limited
Liability Company, the period of establishment of the company, the aims and
objectives and business activities of the company, the amount of authorized
capital, issued capital, paid-up capital, nominal value and number of shares,
company address and founder data (Aspan, 2017). The founder's data itself contains the full name, place of birth,
occupation, place of residence, residence number and Taxpayer Identification
Number of the founder as well as the director and shareholder of the Individual
Limited Liability Company. The registration of the Individual Limited Liability
Company will get an endorsement or status as a legal entity from the Ministry
of Law and Human Rights.
A Limited
Liability Company if it has not received approval from the Ministry of Law and
Human Rights, then the Limited Liability Company cannot be classified as a
legal entity, so that all its responsibilities and obligations are equated with
a partnership of firms or non-legal entities, it is regulated in Article 7
paragraph (2) of Law No. 40 of 2007. If a Limited Liability Company is
established without a submission in the form of an application for ratification
to the Ministry of Law and Human Rights, then within 60 (sixty) days from the
establishment of the Limited Liability Company can be declared dissolved by law
(Wiranti, 2019). In Law No. 40 of 2007 confirms that Article 4 regulates the
establishment of a Limited Liability Company regulated and examined by the
Ministry of Law and Human Rights, Article 5 confirms related to the
requirements and procedures for the establishment of a Limited Liability
Company, including also the requirements for the establishment of a certificate
of establishment authorized by a notary or known as a notarial deed then must
obtain approval from the Ministry of Law and Human Rights,� Article 29 states that changes to the
Articles of Association of a Limited Liability Company must obtain approval
from the Ministry of Law and Human Rights, and Article 95 states that the
revocation of a Limited Liability Company's license can only be carried out by
the Ministry of Law and Human Rights.
Law No. 40 of
2007 can be seen that the Ministry of Law and Human Rights in Indonesia has a
role in supervising and regulating Limited Liability Companies. So that all
activities of the Limited Liability Company starting from establishment,
regulation of changes, revocation of licenses, supervision and guidance and
additional must go through the Ministry of Law and Human Rights. One of the
authorities of the Ministry of Law and Human Rights is to have the authority to
revoke the license of a Limited Liability Company.
Supervision of
finances and tax-related policies in Limited Liability Companies in Indonesia
is the authority of the Ministry of Finance, so that a Limited Liability
Company that has financial or tax problems, the Ministry of Finance only has a
role or authority as law enforcement in solving these problems. The Ministry of
Finance does not have the authority to revoke the Limited Liability Company's
license. If the license from the Limited Liability Company must be revoked, the
Ministry of Finance must go through the Ministry of Law and Human Rights.
�� All applicable legal rules must be in
accordance with the theory of expediency. The theory of expediency itself
according to Gustav Radbruch is divided into 3 goals,
expediency, certainty and justice (Nahak,
2023). The highest position is in
justice, then the second is expediency and finally legal certainty. Justice is
the first and most important legal basis in the formation of a law in
Indonesia. Justice is used as a foundation and benchmark for a positive system inherent
in community life. Expediency itself is the most difficult thing to assess or
determine related to a policy that has an impact or not on community life.
Legal certainty according to Utrecht is a law enacted to ensure legal
certainty.
�� The existence of a state institution that
oversees the activities of a Limited Liability Company, certainly fulfills the
theory of legal objectives in the form of benefits. Where supervision can
provide good benefits for the Indonesian people as entrepreneurs and as
consumers. with supervision, it is expected to eradicate limited companies that
are not in accordance with applicable law.
CONCLUSION
Based on the research conducted, it can be
concluded that limited liability companies in Indonesia are regulated by Law
No. 40 of 2007. This law was formed to meet public demands for business
development in accordance with the principles of good corporate governance and �to improve fast services and
legal certainty. The establishment of a limited liability company in Indonesia
initially had to be done by a minimum of 2 people, but in the Job Creation Law,
this requirement changed to a minimum of 1 person. A limited liability company
also has the obligation to apply for ratification to the Ministry of Law and
Human Rights, otherwise the limited liability company can be declared dissolved
by law. Supervision of limited liability companies is carried out by state
institutions with the aim of ensuring that limited liability companies run in
accordance with applicable laws and regulations. This supervision is important
to maintain fairness and sustainability in the activities of limited liability
companies.
In the event of a lawsuit, every
shareholder has the right to file a lawsuit against the limited liability
company if they feel aggrieved by the company's actions that are considered
unfair and without reasonable reasons. Limited liability companies also have
the right to sue third parties who are suspected of default or unlawful acts.
Thus, supervision of limited liability companies in Indonesia is important to
maintain fairness and sustainability in the business world, as well as provide
legal certainty for all parties involved.
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Copyright
holders:
Ria Veronica, Jeane Neltje Saly (2023)
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