Company Legal Entity Status and Company Liability for Liabilities
By: ABDUS SALAM,S.H.,M.H.
The classification of companies into individual companies, civil partnerships, firms, CVs, PTs, cooperatives, etc., in addition to facilitating regulation, also makes it easier for the public to recognize companies based on their characteristics, and the most essential thing is the issue of the founders’ accountability for the company’s legal actions. The positive law differentiates the types of companies into individual companies or partnership companies. An individual company is a company founded by one person, while a partnership company is a company that consists of more than one founder and is made based on an agreement. The partnership company is further divided into 2 (two), namely a partnership company that is not a legal entity and a partnership company that is a legal entity. Partnership companies that are not legal entities consist of Civil Partnerships, Firms, Comanditair Venounscaaph, etc. Meanwhile, a legal entity partnership company can be in the form of a Limited Liability Company and a Cooperative. The classification of companies as mentioned above is based on the number of founders, the capital system, the form of accountability, and the way of running their business.
In the business world, companies in the form of Limited Liability Companies (PT) tend to be in great demand by investors, especially after examining the founder’s responsibility for the company’s business risks, as well as the ability of a company to develop rapidly and generate large profits. Entrepreneurs who have large funds prefer Limited Liability Companies (PT) to companies in other forms, domestic and foreign investors too. This is because a Limited Liability Company (PT) is a Civil Legal Entity (Recht Person), as a private legal entity a Limited Liability Company (PT) has its assets separate from the assets of its founder and is independently responsible for legal actions on behalf of the company.
If a company in the form of a Limited Liability Company (PT) has debts to certain parties, the organs of the Limited Liability Company (PT), namely the GMS, directors, and commissioners do not share in bearing the debts of the Limited Liability Company. Except for the errors or omissions of the Company’s organs, which result in the birth of the Limited Liability Company (PT) debts. A lawsuit or material suit against a Limited Liability Company (PT) will burden the assets of the Limited Liability Company (PT). The provisions of article 1131 of the Civil Code, which stipulates that the assets of the debtor also become collateral for the debtor’s debts, also apply if the debtor is a Limited Liability Company (PT) because a Limited Liability Company (PT) is a legal subject. Assets that are collateral for the debts of the Limited Liability Company are all assets owned by the Limited Liability Company (PT), both for assets that already exist or do not exist at the time of the engagement, both tangible and intangible.
Nowadays, methods of solving debt-receivable problems in court forums are increasingly developing, even these methods are not only provided to fight for creditors’ rights but also for the interests of debtors who experience the event of default. One of the methods that can be used to solve the problem of accounts payable is bankruptcy law, namely the settlement of debt problems through the bankruptcy forum and Postponement of Debt Payment Obligations (PKPU), this is regulated in Law No. 37 of 2004 concerning Bankruptcy and PKPU. The Law on Bankruptcy and Postponement of Debt Payment Obligations or often known as UUK and PKPU is a legal umbrella for creditors and debtors who wish to resolve their debt problems through bankruptcy law, provided that the debtor has more than 1 (one) creditor and at least 1 (one) debt is due and can be collected.
The bankruptcy of a Limited Liability Company (PT) will result in general confiscation of the assets of a Limited Liability Company (PT), and if there are intellectual property rights (IPR) in the assets of a Limited Liability Company (PT), then Intellectual Property Rights (HKI) were also confiscated to fulfill the obligations of a Limited Liability Company (PT) which fell bankrupt. This seems to be common considering bankruptcy to debtors is bankruptcy regarding their assets. In contrast to a Limited Liability Company (PT) which is currently in the Postponement of Debt Payment Obligations (PKPU) either temporarily or permanently, the assets of a Limited Liability Company (PT) are not confiscated but are still controlled by the debtor. It’s just that the implementation of legal actions regarding his assets must be carried out together with the management. PKPU’s main objectives are debt repayment and business sustainability, these are, of course, different from bankruptcy which places more emphasis on the settlement, even though in bankruptcy there is also peace and activities to continue the business of a company.
[1] Agus Budiarto., S.H., M.Hum., Op. Cit., Pages 13–14
[2] Fred BG. Tumbuan in Imran Nating, 2005, Peranan dan Tanggung Jawab Kurator dalam Pengurusan dan Pemberesan Harta Pailit, Raja Grafindo Persada, Jakarta, page 43
[3] R. Anton Suryatno, Pemanfaatan Penundaan Kewajiban Pembayaran Utang Sebagai Upaya Mencegah Kepailitan, Kencana Prenada Media Goup, Jakarta, page 51
[4] Darminto Hartono, 2009, Economic Analysis of Law atas Putusan PKPU Tetap, Institute for Law and Economic Studies, FH UI, Jakarta, page 81
