BANKRUPTCY IN PT SEJATIBINA
BUSINESS LAW PAPER
BY:
SRI AYU
NUR RAHMAH
SUKADRI
MELISSA RANTE
ACCOUNTING DEPARTMENT
POLITEKNIK NEGERI UJUNG PANDANG
MAKASSAR
2013
ACKNOWLEDGEMENT
Nothing
all writer should attach to initiate this acknowledgement instead of saying
gratitude to Allah SWT, because of His Grace and Mercy that make this paper of
Business Law can be completed properly. Greetings and Shalawat for the Prophet
Muhammad SAW along with his sacred family and friends who are always stay in
taught.
The
writer would not be able to finish this paper without support from several
parties. So that, the writer firstly would like to thank to the beloved writer’s
mom and dad who have given the most priceless support in the world. Thank you
for all the love, understanding, trust and hardwork, effort, and even tears
that may be shed in order to raise me up until today. It’s all deserve nothing
unless heaven.
As a
human being, this paper may still away from completeness. Therefore, with
pleasure the will receive all suggestions which are given that can develop this
paper.
Makassar, Mei 2013
Writer
TABLE OF CONTENT
CHAPTER I INTRODUCTION
CHAPTER II PARTINENT IDEA
REFERENCES
CHAPTER I
INTRODUCTION
A. Background
The survival of a company basicly is determined by amount of capital it has both within the
framework of establishment of companies, business improvement and expansion of
the capital requirement will be the main thing. Many things can be done by the
company in an effort to meet these capital needs, including; sale of shares to
public, sale of debentures (bonds) or by performing loan (credit) to
both natural persons and legal entities other debts by agreement between debtor
and creditor.
In everyday practicing, the company do the loan aqreement (credit) not only tied to one lender only, even at the same
time can be bound with more than one or several creditors. With the loan
agreement (credit) done by more than one company to return the loan on time, if
a company is in poor financial condition and unable to repay their debts, then two or more creditors would
apply for bankruptcy through Commercial
Court.
The legal consequences of
bankruptcy is that debtors do not have the authority to take action that brings
management and ownership of assets due to assets, and the act of the debtor to take action management, and
ownership should be done by curator who are appointed on the basis of
bankruptcy. That can be a curator in bankruptcy is an individual or association
that has been registered in the department of justice.
Bankrupt problem is basically
not only starting point in the settlement of debt payments to its creditors,
but further than that there are other obligations for companies that still must
be implemented that is associated with the workers which the company is obliged
to pay severance pay in accordance with the established in Article 95 Paragraph
(4) of Act No. 13 of 2003 on Labor states "In case the company is declared
bankrupt or liquidated under the legislation in force, wages and other rights
of workers is resolved in favor of debt payment."
B. Problem Statement
Based on the background which I
have explained, I can get some problems, such as:
1.
What are causes of PT.
Sejatibina to choose
bankruptcy than the postponement of debt payment obligations (PKPU)?
2.
What is
the cause of the deviation of Good Corporate Governance in Indonesia?
C. Objectives of the Paper
The objectives of the paper,
such as:
1.
To find
out the
causes of PT. Sejatibina choose bankruptcy than the postponement of debt payment obligations (PKPU)?
2.
To find
out the causes of the deviation
of Good Corporate Governance in Indonesia?
D.
Significances of the Paper
The siqnificances of this paper, such as:
To giving explanation about bankruptcy in PT Sejatibina.
Start from the legality, and all about bankrupty, generally or especially.
Besides that, we can get knowledge, how to judge bankrupty in the company
condition, and the rule in bankrupty law.
CHAPTER II
PARTINENT IDEA
A.
Overview
1. The History of Indonesia Bankrupt Law.
On April 22, 1998,
the government has set regulations of Law No replacement. 1 of 1998 dated 22
April 1998
concerning Changed of the Law
on Bankruptcy (State Affairs) No. 1998 (Bankrupt
Act). Regulation is then approved by the House of
Representatives to became law and became Act No. 4 1998 thus
only Stipulation
of Government Regulation No. 1 of
1998 on amendments
to the Law on Bankruptcy became law September
9, 1998 (State
Gazette No. 1 of 1998. 135).
Bankruptcy law prior to
1945, first case of bankruptcy to merchants (entrepreneurs)
of Indonesia regulated in Wetboek van Koophandel (WvK), the
third book, entitled van de Voorzieningen in geval van onvermogen van kooplieden (Rules on Disabilities Traders). These regulations contained in Article 749 through Article 910 WvK, but then had been
revoked under Article
2 Verordening Ter Invoering van de Faillissementsverordening (S. 1906-348). This
rule applies to traders.
Bankruptcy Law since 1945, after Indonesia proclaimed
its independence on August
17, 1945, there are some
period of history that needs to be
observed in
connection with the enactment
of Faillissementsverordening (Bankruptcy
Rules). That periods
1945-1947 are its history, the
year of 1947-1998 and 1998-present.
In the years 1945-1947 in Article
II of the 1945 transition rules specify: "Any legal
entity and the existing rules still apply directly, as long
as not held by the new basic law”
2. Basic Concepts of Bankrupt
If traced, the beginning of the
bankruptcy law has existed since 118 BC in Roman law. In Roman
times, in addition to property, physical or body of a debtor is also a
guarantee of repayment of debts. So the notion of bankruptcy is a situation
where the debtor is unable to pay all his debts to creditors. The parties who bankrupt
generally are traders, shop owners, in short, are that most people actually
using bankruptcy as a means of "exit" from debt who are unable to
pay.
While in the 90's, that
condition changed, very few bankruptcy petition filed in the period before the enactment of the Bankruptcy
Act. Since the last revision in Staatblad 1906:348, there is no significant change to the substance of the bankruptcy
laws. Changes in the structure of the business world are a reality, and
significant progress logically necessary infrastructure accommodated well by
the law.
One of the problems that cause
urgency revision Failissement Verordening (FV) is a bankruptcy filing
requirements. FV provides that the bankruptcy requirements
are as follows: "Any debt that is in a state stopped paying its debts,
with the decision of the judge, either on its own reporting, either at the
request of one or more of the account receivable,
declared in a state of bankruptcy"
As the basis of bankruptcy petition, this
formulation raises its own difficulties, because to prove debtor who
stopped paying the state stopped paying absolutely. Sometimes the debtor can
not otherwise stop paying, just because the debtor continues to pay interest on
its debt, although interest payments are in no way comparable to the principal
debt.
3.
The Occurrence of Bankrupt Terms
It is important to know about any conditions that
must be met in advance if a person or a legal entity intends to file a
bankruptcy petition by the Commercial Court. The terms of need to know because
if the bankruptcy petition does not meet these requirements, the applicant will
not be granted by the Commercial Court.
According to Article 1 paragraph (1) of Act No. 4
of 1998 as already amended by Law No. 37 of 2004 on Bankruptcy and Suspension
of Payment: "Debtors who have two or more creditors and do not pay at
least one debt which has fallen time and can be billed, be declared bankrupt by
a competent court decision referred to in Article 2, either on its own applyment, or at the request of someone or more creditors."
Based on the description
above, it is a bankrupt is a
state where the debtor has
more than one lender, has stopped paying its
debts that are due and collectible, so the
terms of a debtor filed for bankruptcy are:
1.
The
debtor has more than one creditor;
2.
Debts matured;
3.
Debtor is not paying at least one of
the creditors;
Debt has
already been charged
The provisions of this
bankruptcy decline stems from the existence of Article 1131 Civil Code which
states all assets of the debtor either already exist or will exist in the
future, either in the form of movable and immovable will be
quarantee for all the agrement, it means that even if not expressly agreed a debtor
should be responsible with their wealth either already exist or will exist in
the future, both movable and the immovable.
But that is not described in article 1131 Civil
Code is that debtors who can be held accountable to the debt are: the debtor
who has property. So, to
explain the provisions of Article 1132 Civil Code added that the goods are to
be insurance for all creditors and the sale of goods is divided according to
their respective comparative amounts unless it among the creditors that there
are legitimate reasons to take precedence.
4. Types of creditors in bankrupt.
In Article 1131 Civil Code has required that all property the
debtor becomes collateral or guarantee for the
implementation of their
obligations not just to one creditor only, but also against other creditors. Thus the adjustment
is necessary any more
about the distribution to its creditors if the assets owned by the
debtor are sold as a result
of the
determination bankrupt by the
Commercial Court.
The provisions concerning the division
of assets shall be
further regulated in Article 1132 Civil
Code which states: "The
property became collateral wealth debtors together for all creditors, the sale of assets
be divided according
to its
balance, is by large-size bill each creditor, except among the creditors that if there
are valid
reasons to take
precedence over other creditors. "With
this article, then there
are certain creditors by law given a higher
legal standing than the creditor the other
and thus take
precedence over payment
of debts.
In law, creditors are given
priority called preferential creditors (secured creditors), while other creditors called unsecured creditors (unsecured
creditors). According
to Article 1133 Civil
Code, a creditor can be given a higher legal status and precedence of other creditors if the creditor claims are:
1.
Claims which is a Privilege;
2.
Claims secured
by a Lien;
3.
Mortgage bill on bail.
With the enactment of Law No. 4 of 1996 on Mortgage and Act No. 42 of 1999 on Fiduciary, then the
bills are secured
by the Mortgage Rights Fiduciary and also a bill which shall
take precedence over unsecured creditors. Related to Privileges, then Civil
Code section 1137 states: "The
right of the
state treasury, the office of the
auction, and other
public organisation established by the government, should take
precedence in enforcing
those rights, and the validity
period of such
rights is set in a variety
of special
laws on these
things." The
rights which same associations (gemeenschappen)
newly eligible or later will have the
right to levy duties; in settings of
regulations that already exist will be held about it".
Based on the description above, can be got
description of the order of priority among creditors is, if not determined that
a billing or receivables secured by the Privileges has a higher position than
the receivables secured by the Collateral Rights, the order of creditors are:
1.
Creditors
who have accounts with Security Rights;
2.
Creditors
who have a Privilege;
3.
Unsecured
creditors.
However, if the Privileges
have been determined to be paid first from the creditors with security rights
and other creditors, the creditors sequence are:
1.
Creditors with Special Rights;
2.
Creditors
with security rights;
3.
Unsecured
creditors.
Next, among
the concurrent creditors, each having the same position in the division from
the sale of assets of the debtor in proportion to the ratio of large-size
accounts respectively, or better known as pari passu rated pro parte.
B.
Discussion
1. The Reason PT.
Sejatibina to Choose Bankrupt
Reason PT. Sejatibina chose the bankrupt
compared to by postponement of obligation of debt payment (PKPU) of because
company do not again possible continue its effort. PT. Sejatibina have also
desisted to pay for the obligation of creditor. While, estae owned [by] the
company more and more to decline its value. Even smaller than debt value. PT. Sejatibina
nor possible get the partner work or investor. Others, strive the bankrupt
believed by as last effort assessed fairest for all party to be complete of
debt payment.
Through bankrupt, payment owe the PT. Sejatibina
can be done orderly well-balancedly by independent party observedly by is supervisor
judge. In application mentioned by PT. Sejatibina confess to owe at PT.
Birotika of equal to Rp4,647 million, PT. Indosat Tbk Rp19,457 million, Star
Succes Capital Ltd AS$338.105 and Solitius Pte Ltd AS$79.671. PT. Sejatibina
feel the weight to fulfill payment owe. Because in this time effort run by a
applicant experience of the decline. Mostly owe the PT. Sejatibina of at all
that creditor basically have fallen due and collectable.
But till application of bankrupt statement
raised by PT. Sejatibina unable to pay totally its debt. That way, PT.
Sejatibina earn to qualified as debitor as determined in Section 1 number 3 UU
No. 37 Year 2004 about Bankrupt and PKPU. That Section determine the debtor
congeniality, namely one who have the debt of because agreement or law which
its redemption is collectable in the face of justice .While obligation to pay
for that debt enter in congeniality Section 1 number 6 Bankrupt Law.
So that, condition to can to express applicant
as debitor in a state of bankrupt as Section 2 sentence (1) UU Bankrupt have
been fullfiled. Namely, there is debt which fall due and collectable and also
there are two creditor or more. Bankrupt verification even also can be done by
modestly.
2. Cause of
Deviation of Good Corporate Governance in Indonesia.
Basically company is economics institute
founded by owner to get the advantage. One of fundamental importance of
stockholder is that company have to fertilize the advantage (profit motive) so that
to can to improve the company value for advantage of all stockholder. In
running its activity, company do the interaction in institute unrightiously is relevant
other with company.
In the interaction there are various
importance which possible and oftentimes do not in line with fundamental
importance of stockholder, inclusive of among other things importance owned by
the employees, cutomer/client, distributor, competitor, Governmental and also
society which follow to give the contribution to company efficacy and which
follow also guarantee the impact from operational activity company.
They are stakeholders which have importance
in the company prosperity. Therefore company have to strive the balance by
paying attention to do not only just importance shareholder but also stakeholder
to maintain the existence and be of benefit to entire/all entitas society.
In framework of that's corporate governance
arrange the related aspect:
a.
is relation
balance between company part (RUPS, Commissary And Board of directors)
including things of related to structure of institute and third operational
mechanism of the company organ ( internal balance).
b.
Accomplishment
of company responsibility as business entity society to all stakeholder,
including related/relevant things with the relation arrangement of between
company with entire/all stakeholder (balance eksternal) to realize company as
good corporate citizen.
Some case in the following is representing
deviation from principles of good corporate governance in Indonesia for
example:
a.
Company use as
vehicle to collect the cheap fund.
In the year 1998 a company noted to buy the
receivable from affiliation party so, that balance of anjak receivable mount
237% becoming Rp 709 billion. The amount represent 68,77% from totalizeing
company asset. By the end of book year 1998, entire/all unrightious receivable
of the affiliation burdened to uncollectible exclusion. Indication that company
is only made by vehicle for affiliation to obtain;get the cheap fund for
company burden.
As a result, public stockholder have to
guarantee the loss of because company find difficulties the cash-flow and
finance performance become ugly so that company cannot pay for the dividend.
The Praktik can be happened by because owner of affiliated company represent
the majority stockholder so that all practical all decision have got the
approval RUPS. In this case is ground of akuntabilitas and fairness to impinged
minority stockholder.
2.
Unopened to
importance bussiness plan information
A company noted do not publicize the plan of
acquisiton of affiliated company and do not announce to public that company
have discontinued the activity produce and also only omit to do the supply
sale. Despitefully the company nor publicize the plan to alter the area of[is
effort. Company do not give the clarification of concerning fund location which
its amount is material (22% from totalizeing asset) on the part of
other;dissimilar.
Effect of which must is the responsibility of
public stockholder is that public stockholder do the invesment with the
information which is not adequate about company. Financial statement which do
not give the conducive information of investor assess the quality of company
asset. Stockholder will " got taken" with the full scale height of
company asset for lack of information expression of concerning kolektibilitas
of asset location in the affiliated company.
c.
Use the corporate
name to get the personal loan
Managing Director a company do the fiduciary
loan to foreign creditor by using corporate name. However the loan fund is not
accepted by company. other board of directors Member though know the existence
of the transaction in the reality do not report to public accountant of concerning
the transaction. As a result is that financial statement submitted/sent to
public become the misleading of because do not load the real correct
information. Creditor party can bring a lawsuit to the court the confiscation
to company of if the loan cannot in service.
d.
Director
decision don’t give attention importance to all stackholder
A company force the self to follow in program
of recapitulisation of affiliated company followedly is share in additional
endorsement of capital. As a result company find difficulties the cash-flow and
becoming not solvable. To overcome the the problem, company do the rights issue
in number which material so that price of share enough significant.
CHAPTER II
CLOSING
A.
Conclusion
1.
Cause PT.
Sejatibina chosen the bankrupt compared to by Postponement of Obligation of
Debt Payment (PKPU) that is because PT. Sejatibina do not again possible
continue its effort. PT. Sejatibina have also desisted to pay for the
obligation of at creditor. Whereas, estae owned by the company more and more
the day more and more to decline its value. Even smaller than its debt value.
PT. Sejatibina nor possible get the partner work or investor. Others, strive
the bankrupt believed by as last effort assessed fairest for all party to be
complete of debt payment.
2.
Cause of the
happening of deviation of Good Corporate Governance is in Indonesia caused by
because happened by some case digressing from principles of Good Corporate
Governance in Indonesia for example:
a)
Company use as
vehicle to collect the fund cheap;
b)
Unopened for
information plan the important business;
c)
Use of
corporate name to get the personal loan;
d)
Heedless Board
of directors Decision of stockholder importance as a whole.
B.
Suggestion
1.
Striving execution
of mediasi and negosiation effectively among the parties which have importance
to in the case of company which have been specified by a bankrupt. And do the
related clear of handling of bankrupt problem, because besides Commercial
Justice also have to entangle the Justice of Relation Industrial.
2.
The importance
of implementation of practice good corporate governance of at company in
Indonesia, monitoring for implementation of good corporate governance by
company can be done by for example through mechanism of pemeringkatan company
of through audit for implementation and compliance for good practice corporate
governance by company.
References
Ariyanto. 2007."Hukum Bisnis”, Law Consultation/Company/Bankrup.htm. [internet] http://www.geocities.com. Diakses 30 Desember 2009.
Jono, S.H. 2007. “Hukum Kepailitan”. Tangerang: Sinar Grafika.
Mahasiswa
Hukum. 2009. “Hukum-Kepailitan”, Encyclopedia of Finance and Banking. [internet] http://www.geocities.com. Diakses
5 Januari 2010.
Sjahdeini, Sutan Remy. 2002. Hukum Kepailitan; Memahami Faillissement
sverordening
Juncto Undang-undang No. 4 Tahun 1998. Cet.I. Jakarta:
PT. Pustaka Utama Grafiti.
Suyudi,
Ari. 2004.
Kepailitan di Negeri Pailit. Cet.II. Jakarta: Pusat Studi Hukum dan
Kebijakan Indonesia.
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