Limited
Liability Company (Company) as a Legal Entity
It is made for Company become
special if compared to other business entities. If the cooperative association
(Comanditaire
Venootschap/CV), Firm, Trading Enterprises (Usaha Dagang/UD) only
be regarded as a business entity. but Company be regarded as Legal Entity. It
means that the Company is also the subject of law that can stand on its own,
prosecuted and make lawsuit in court, of course, to be represented by competent
organs.
Beginning of the question that, if
the Company’s is a legal entity, then when the predicate was gained?. We know,
if two or more people to set up Limited Liability Company, it would draw up all
plans, and make the Deed of Establishment including Articles of Association,
and running the company's operations even though there has been no
determination from Minister of Justice and Human Right (Menkumham) related to
their status to become as Limited Liability Company.
In
Article 7 (4) Law 40 of 2007 says “A Company obtains legal entity status on the date of the
issuance of the Minister’s Decree regarding the
legalization of the Company as a legal
entity”. To obtain the status of legal entity, first must be
preceded by the filing of the company name, then apply to the Minister for
approval of the incorporation of legal entity of the company with done together
by the founders or give authority to the notary, and done by electronically
through the System Information of Legal Entity (Sisminbakum).[1]
Status
of legal actions undertaken by companies is not have obtain legal status to
become a legal entity can be viewed from several aspects based on Company Law.
If legal action on behalf of the Company, who have not obtained legal status,
should only be done by all members of the Board of Directors, together with all
founders and all members of the Board of Commissioners. And all of them are
responsible by jointly liability for the legal actions undertaken by companies.[2] Furthermore, the legal act is performed
together will be the responsibility of the company after the company obtained
legal status as a legal entity.[3]
But
if the legal act performed by a founder on behalf of the Company that has not
gained the status of a legal entity, the legal action become responsibility of
the respective founders and does not bind the Company.[4]
And this legal act is only binding and become the responsibility of the Company
after the legal action was approved by the shareholders at the general meeting
of shareholders, which was attended by all the shareholders of the Company. The
general meeting of shareholders is meant the first general meeting of
shareholders is held no later than 60 days after the company obtained decree as
a legal entity.[5]
It
is different if the Company has obtained the status of a legal entity. The
company automatically becomes the subject of law. So, if the actions performed by
the organ of the company, it’s become the responsibility of the company as long
as not conflict with applicable laws and regulations. Likewise with the
shareholders. Shareholders are not personally responsible for all actions is
performed on behalf of the Company and any damages beyond the shares held in
the company's.[6]
Except:[7]
- the requirements for the Company to be a legal entity have not been or are not met;
- the shareholders concerned directly or indirectly have in bad faith misused the Company for their own personal interests;
- the shareholders concerned are involved in unlawful acts committed by the Company; or
- the shareholders concerned directly or indirectly have unlawfully used the Company’s assets, which has caused the Company’s assets to become insufficient for the settlement of the Company’s liabilities.
Regards
Jun
