Company Law: Establishment of PT by the Debtor who declared Bankrupt

Nowadays the development of legal instruments in economic activity continues to grow in line with the company and the dynamics of social change that is in the community. Limited Liability Company (PT) in general have the ability to be able to develop themselves, capable of processing as well as holding the capitalization of capital through an initial public offering or take rights issue as a “tools” to obtain additional capital to grow the company. And of the many associations that occur in the business world and the most popular today is a Limited Liability Company[1]

The legal basis regulating the Indonesian Limited Liability Company is the Law No. 40 of 2007 concerning Limited Liability Company. Before this law was born, there are 2 provisions governing limited liability companies. First, the enactment of the Book of the Law of Commercial Law (Commercial Code) which contains provisions concerning the company who applies in the year 1848-1995. Then the second was birth the Law No. 1 of 1995 on Limited Liability Company that apply in the year 1995-2007

Before entering the core essay, we have to know what is the Limited Liability Company? Law no. 40 of 2007 defines PT as a legal entity which is a capital alliance, established under the agreement, engage in business with a fully authorized capital divided into shares and meet the requirements set forth in this law and its implementing regulations. So according to this Act, to be called as PT, then a company must fulfill the elements of which are: 1) Form of legal entity which is a capital alliance (2) Established on the basis of agreement (3) Conducting business activities  (4) The capital is divided into “sero-sero” or shares and (5) Meet the requirements of the Company Law and its implementing regulations

In our life, whether natural person or a legal entity sometimes do not have enough money to finance the purposes or business activities[2]. To be inadequate, then the person or company may do so by borrowing the money required from other parties. Board of Directors as an organ that has the right to legal action over the company have the authority to borrow money to other parties either in the form of bank loans, debt securities short, medium and long with the aim of building the company. As the party who obtained the loan, then the PT is called the debtor. And the party providing the loan is called the creditor. Because the loan is a debt, the debt is required to be fulfilled by the debtor and if not fulfilled will give right to the creditors to obtain fulfillment of the debtor’s property[3].

In the business of course not all companies can settle their liabilities with the current. Sometimes there are also conditions of corporate financial distress which ought to be wary of. Why? Because if the company has two or more creditors and do not pay in full at least one debt which has dateline and payable, be declared bankrupt by court decisions, either on the application itself or at the request of one or more creditors [4]. And in the Company Law to set if bankruptcy occurs because of errors or omissions of Directors and the company’s bankruptcy estate is insufficient to pay all liabilities of the company, then each member of Directors are joint responsibility for all liabilities that have not paid off[5]. The condition of insolvency (The state or condition of a person (individual, partnership, corporation, Municipality) who is unable to pay its debts, as they are, or changed from a due) this is what became one of the break up of the PT on the basis of Article 142 the Company Law.

Revitalization of the Bankrupt Debtor? Could it be?

With the dropping of the debtor’s bankruptcy decision, it has effect for the debtor and his property. For the debtor, since the bankruptcy decision has been made, he (the debtor) lost the right to perform the maintenance and control of property (persona standi in inclucio)[6]. Then after that there are legal consequence with the settlement of the bankruptcy estate is the sale of the bankruptcy estate and be divided unless there are other business considerations.

This is because in the case of insolvency had not occurred for peace and the bankrupt debtor’s assets is less than its liabilities. It can be seen that the rehabilitation carried out among others, if there is peace or debts to be paid in full (in Article 215 Bankruptcy Law). Unless otherwise after the insolvency, bankruptcy debtor then there are treasures, such as inheritance or winning the lottery and so on, the debt can be paid in full. Thus, rehabilitation can be filed under Article 215 of Bankruptcy Law. The purpose of rehabilitation is to restore the debtor bankrupt to its original condition as before the bankruptcy. By the official rehabilitation, the debtor bankrupt will obtain public confidence back to take care of their wealth back

Establishment of New Company

After the debtor do a “payment in a satisfactory manner” and he receive rehabilitation through court decisions, then he can take care of his property back, including to incorporate the basic capital in the establishment of a new company. The process of establishing a PT there are several steps that need to be done are:

  1. Preparation Phase

The deal with two person or more to establish a PT must be stated in an authentic deed made by the notary in the Indonesian language. And also in this deed shall contain the company’s Articles of Association[7]. Authentic documents is required here because it serves as evidence the terms of establishment of PT. Keep in mind that since the deed was signed, the legal relationship between the founders is a contractual relationship because the company has not obtain the legal entity status

  1. Application Phase

In article 1 of the Company Law explained that PT is a legal entity. To obtain legal status is the deed of establishment of PT must be approved by the Minister of Justice and Human Rights. This intend for the Government to prevent the establishment of a PT whose purpose to against the law and contrary to morality and public order. Submission of application is done through technology information services (system of legal administration) that submitted at least 60 days from the date of deed was signed. If the documents and applications are all complete, then the Minister issued a decree of ratification of PT became a legal entity

  1. Company Listing Phase

After obtaining approval from the Minister of Justice and Human Rights, the company must be registered. List of company was conducted by the Directorate General of General Legal Administration at the Ministry of Justice and Human Rights[8]

  1. Stage Announcements

After the company is listed, the next is announced in the State Gazette of RI. The announcement made by Minister of Justice and Human Rights no later than 14 days from the date of publication of the decision of the Minister issue the ratification of the legal entity of the Company. This is to fulfill the principle of publicity

At the end of this essay we go to the conclusion that the debtor bankrupt and still be entitled to set up a company, including to enter his property into the company’s initial capital. It could be possible if the debtor is a “satisfactory payment” and get rehabilitation through court decisions. The debtor will still can be appointed as a member of the Board of Directors as well as Board of Commisioners due to legal consequences after rehabilitation the debtor is really like nothing ever happened bankruptcy

[1] Richard Burton Simatupang. Aspek Hukum Dalam Bisnis, (Jakarta : Rineke Cipta,  2003), page 3

[2] Sutan Remy Sjahdeini. Hukum Kepailitan : Memahami UU No. 37 Tahun 2004 tentang Kepailitan, (Jakarta : Pustaka Utama Grafiti, 2009), page 2

[3] See Article 1 point 6 Law number 37 of 2004 regarding Law Number 37 Year 2004 on Bankruptcy and Suspension of Payment

[4] See Article 2 point 1 Law number 37 of 2004 Law Number 37 Year 2004 on Bankruptcy and Suspension of Payment

[5] See Article 104 point 2 Law number 40 of 2007 on Limited Company

[6] Doan Rakasiwi,”Wewenang Kurator Dalam Pelaksanaan Putusan Pailit oleh Pengadilan,” (Skripsi Sarjana Universitas Muhammadiyah Surakarta, 2009) page 4

[7] C.S.T. Kansil. Seluk Beluk Perseroan Terbatas. (Jakarta : Rineke Cipta, 2009), page 6

[8] See The Rule of Minister of Justice and Human Rights RI No. M.01.HT.01.01 in 2008


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