RJOAS January 2025
by Kusuma Melia Surya (Universitas 17 Agustus 1945 Surabaya, Indonesia)
In general, the GMS is held at the Company's domicile, but it is possible that decisions are made circularly where shareholders vote in writing without having to be present in person at the meeting which then authorizes one of the parties to appear before a Notary and be registered with Ministry of Law and Human Rights of Republic Indonesia. Circulars have the same legal force as GMS, provided that shareholders unanimously agree while still adhering to the requirements as stipulated in the Company's Articles of Association and Law No. 40/2007. The problem that is the object of analysis in this study is regarding the implementation GMS at PT. Yufa Kalimantan, this case began as a result of the implementation of GMS which was held on August 30, 2019 in Muara Badak, East Kalimantan without the presence of 2 (two) shareholders, namely JK and J. The implementation of GMS included an agenda for changes in domicile and additional capital. As a minority shareholder with 12% (JK) and 20% (J) share ownership, they felt disadvantaged by the implementation of the GMS because it made their share ownership percentage even smaller, especially shareholders JK and J never felt they had received a summons to the GMS related to the agenda. The validity of holding a GMS including GMS summons, meeting agenda, venue for the GMS, and attendance quorum has been fully fulfilled by PT. Yufa Kalimantan. Meanwhile, the legal considerations used by judge in District Court decision number 987/Pdt.G/2023/PNSby dated May 22, 2024 in conjunction with the High Court number 443/PDT/2024/PT SBY dated July 24, 2024 are that PT. Yufa Kalimantan is considered not to have issued a summons by registered mail as stipulated in provisions of Article 82 paragraph (2) of Law No. 40/2007, in addition the judge considered that summons by registered mail and advertisements in newspapers are cumulative in nature. In principle, the phrase "and/or" used in statutory regulations has been regulated in Attachment II of Law No. 12/2011 at number 264 has provided confirmation regarding the meaning of the use in word "and/or" which states cumulative and alternative nature. This gives rise to unclear norms and multiple interpretations of phrase and the provisions of Article 82 paragraph (2) of Law No. 40/2007 are no longer relevant.
In general, the GMS is held at the Company's domicile, but it is possible that decisions are made circularly where shareholders vote in writing without having to be present in person at the meeting which then authorizes one of the parties to appear before a Notary and be registered with Ministry of Law and Human Rights of Republic Indonesia. Circulars have the same legal force as GMS, provided that shareholders unanimously agree while still adhering to the requirements as stipulated in the Company's Articles of Association and Law No. 40/2007.
The problem that is the object of analysis in this study is regarding the implementation GMS at PT. Yufa Kalimantan, this case began as a result of the implementation of GMS which was held on August 30, 2019 in Muara Badak, East Kalimantan without the presence of 2 (two) shareholders, namely JK and J. The implementation of GMS included an agenda for changes in domicile and additional capital. As a minority shareholder with 12% (JK) and 20% (J) share ownership, they felt disadvantaged by the implementation of the GMS because it made their share ownership percentage even smaller, especially shareholders JK and J never felt they had received a summons to the GMS related to the agenda.
Basically, PT. Yufa Kalimantan has issued a summons for the GMS proven by registered mail on August 13, 2019 with proof of TIKI delivery receipt Number 030189430926 and Number 030189430929, the second sending of the files back to the sender. In addition to registered mail, PT. Yufa Kalimantan has issued a summons through an advertisement by Kompas daily newspaper on August 15, 2019. In addition, PT. Yufa Kalimantan has notified the summons via WhatsApp electronic message.
Based on the Decision of District Court Number 987/Pdt.G/2023/PN.Sby jo. Decision of High Court Number 443/Pdt/2024/PT.Sby, the judge considered that summons for GMS was only made through advertisements in newspapers and ignored the summons for the GMS through registered mail that had been made by PT. Yufa Kalimantan. Can the holding of the GMS with a summons only through advertisements in newspapers be said to be invalid and cause the GMS decision to be null and void by law. This shows that the use of advertisements in newspapers as a method of summoning the GMS can potentially become a source of conflict in a Limited Liability Company (I Gede Indra Vitata Yuda, 2024).
Basically, several problem formulations can be formulated as follows: First, how is validity the holding of GMS with a summons through advertisements in newspapers carried out by PT. Yufa Kalimantan. Second, what are legal implications for company holding the GMS with a summons through advertisements in newspapers which are considered as invalid?
PT. Yufa Kalimantan is a company engaged in trade, transportation, construction, agriculture, industry, mining, workshops and services, which was established in 2002 and has adjusted its articles of association in 2008 and obtained the status of a legal entity based on the laws and regulations in force in Indonesia, as stated in Deed Number 344, made before Hasanuddin, Bachelor of Law, Master of Notary, Notary in Samarinda on June 24, 2008, which was ratified based on the Decree of Minister in Law and Human Rights Number: AHU-46648.AH.01.02.Year 2008. That, in 2017 PT. Yufa Kalimantan experienced changes in share ownership and management therein as stated in the deed of minutes of the Extraordinary GMS of PT. Yufa Kalimantan Number 05 made before Triwanli, Bachelor of Law, Master Notary, Notary in Tenggarong on March 24, 2017.
The problem began when PT. Yufa Kalimantan held an extraordinary GMS on August 30, 2019, which was stated in the Deed of Statement of Meeting Resolutions of PT. Yufa Kalimantan Number 05, made before Dr. Andreas Albertus Andi Prajitno, Bachelor of Law, Master of Notary, Notary in Surabaya City dated September 6, 2019, which was ratified based on the Decree of the Minister Law and Human Rights Number: AHU-0178505.AH.01.11.Year 2019 dated September 23, 2019 (hereinafter referred to as the 2019 GMS), with the meeting agenda: changing the company's domicile from Muara Badak Kalimantan to East Jakarta and increasing the company's capital.
In this case, the decision of judge, the both District Court number 987/Pdt.G/2023/PNSby dated May 22, 2024 and the High Court number 443/PDT/2024/PT SBY dated July 24, 2024, which stated that 2019 GMS and its derivatives were invalid and had no legal force, is not appropriate because it is contrary to Law and is not based on careful legal considerations. That in order to identify the 2019 GMS that was held as an unlawful act, evidence must be provided for an elements of an unlawful act, which evidence must be on existing legal facts.
The holding of the 2019 GMS of PT. Yufa Kalimantan as stated in the deed of statement of meeting decisions Number 05 dated September 6, 2019 is something that can be categorized as an act. However, can this act be categorized as an unlawful act, considering that provisions related to validity of holding GMS which include by summons for GMS, meeting agenda, the place where the GMS is held, the quorum of attendance have been fulfilled in full. However, here are some important points in the judge's consideration in deciding case at PT. Yufa Kalimantan are as follows:
Considering, that from the legal facts in the a quo trial it was revealed through Exhibit P-1 in the form of a Statement Letter from H. Jaka Rian Tanjung (PLAINTIFF I) and Exhibit P-8 in the form a Statement Letter from H. Jailani (PLAINTIFF II) that the PLAINTIFF as shareholders company who have rights and obligations that are protected by law, never received an official invitation related to the Extraordinary General Meeting of Shareholders of PT. Yufa Kalimantan which was held on August 30, 2019, this is in line with Exhibits P-9, P-10, P-11, P-12 which explain that the evidence of Shipping Receipt No. 030189430296 and PT. Yufa Kalimantan to H. Jaka Rian Tanjung (Plaintiff I) and Shipping Receipt No. 030189430929 from PT. Yufa Kalimantan to H. Jailani (Plaintiff II) which was declared invalid by Tiki because it had been cancelled by the Sender himself.
Considering, that based on description as stated above, it is proven that the Plaintiffs were never summoned by registered letter, so that the EGMS held by Defendants I to Defendant IV was never attended or known by Plaintiffs.
The consideration of the First Level Judge who considered that the summons for a GMS by registered letter and/or advertisement in a newspaper is cumulative is clearly a form of erroneous and baseless interpretation, because if the requirements for summons for a GMS by registered letter and/or advertisement in a letter are cumulative, then the provisions of Article 82 paragraph (2) of Law 40/2007 should be written using the word "and" not "and/or". This has also been supported by the Constitutional Court decision Number 62/PUU-XVII/2019 in another case, with a request to conduct a "material review of the contents of Article 11 paragraph (1) letter a as long as it concerns the phrase "and/or" and Article 29 letter e of Law No. 19 of 2019", according to the Constitutional Court, the formulation of the word "and/or" as a connecting word must be interpreted that one or both may be fulfilled, in other words it can be applied cumulatively or alternatively. This gives rise to unclear norms and multiple interpretations of the phrase, as well as the provisions of Article 82 paragraph (2) of Law No. 40/2007 is no longer relevant.
The Panel of Judges should examine and explore to find the real material truth in order to achieve justice. The application of sending letters 2x (twice) adopted by the judge, although administratively intended to ensure the validity of the summons process, does not fully reflect the reality and expectations of business actors who comply more with the provisions of Law No. 40/2007. Therefore, the judge's decision which depends on fulfillment of the procedures as specified in SE No. 1/2023 can be considered less appropriate by context of Company's practice where private companies usually prioritize the guidelines contained in the articles of association and the provisions of Law No. 40/2007. In addition, the judge also needs to understand that in practice, delivery/courier services often do not want to get too involved. In principle, the task carried out is only to make deliveries as assigned in the delivery destination address, if there is no recipient at the destination address, the letter will definitely be returned. In this case of PT. Yufa Kalimantan, the Judge's considerations seemed to ignore some of existing evidence starting from:
- Registered letter regarding the summons/invitation to the Extraordinary GMS Number: 002/Und-RUPSLB/VIII/2019 and regarding the offer to purchase shares Number: 002/Off-YK/VIII/2019 dated 13 August 2019 for Plaintiff I;
- Registered letter regarding the summons/invitation to the Extraordinary GMS Number: 001/Und-RUPSLB/VIII/2019 and regarding the offer to purchase shares Number: 001/Off-YK/VIII/2019 dated 13 August 2019 for Plaintiff II;
- TIKI shipping receipt number 030189430926 and 030189430929;
- Screenshot of the shipping receipt check;
- Screenshot of the conversation in the Whatsapp application;
- Witness statement from the Main Director who confirmed knowing and signing the invitation in registered letter and invitation in newspaper in the context of summoning the Extraordinary GMS.
In the decision of the district court number 987/Pdt.G/2023/PNSby dated May 22, 2024 in conjunction with the high court number 443/PDT/2024/PT SBY dated July 24, 2024, the defendants PT. Yufa Kalimantan are required to compensate for material losses of Rp. 1,280,000,000,- (one billion two hundred and eighty million Rupiah). In addition, Declaring the Deed of Statement of Meeting Resolutions of PT. Yufa Kalimantan No: 05 dated September 06, 2019, made before Notary DR. AA Andi Prajitno, SH., M.Kn (Defendant V) registered with the Ministry of Law and Human Rights with Company Registration Number: AHU-0178505AH.01.11 YEAR 2019 dated September 23, 2019 and its derivatives are invalid and have no legal force.
The decision was made based on the judge's considerations which highlighted the process of calling a GMS which was considered invalid. As explained previously, calling a GMS can be done through registered mail and/or advertisements in newspapers as regulated in the provisions of Article 82 paragraph (2) of Law No. 40/2007, but many jurisprudence opposes this provision. That this creates uncertainty in the interpretation of the use of the phrase "and/or" in article, which causes confusion and different interpretations for the company, whether both must be done or can use one of existing alternatives.
The validity of holding a GMS including GMS summons, meeting agenda, venue for the GMS, and attendance quorum has been fully fulfilled by PT. Yufa Kalimantan. Meanwhile, the legal considerations used by judge in District Court decision number 987/Pdt.G/2023/PNSby dated May 22, 2024 in conjunction with the High Court number 443/PDT/2024/PT SBY dated July 24, 2024 are that PT. Yufa Kalimantan is considered not to have issued a summons by registered mail as stipulated in provisions of Article 82 paragraph (2) of Law No. 40/2007, in addition the judge considered that summons by registered mail and advertisements in newspapers are cumulative in nature. In principle, the phrase "and/or" used in statutory regulations has been regulated in Attachment II of Law No. 12/2011 at number 264 has provided confirmation regarding the meaning of the use in word "and/or" which states cumulative and alternative nature. This gives rise to unclear norms and multiple interpretations of phrase and the provisions of Article 82 paragraph (2) of Law No. 40/2007 are no longer relevant.
Legal implications of District Court decision number 987/Pdt.G/2023/PNSby dated May 22, 2024 in conjunction with High Court decision number 443/PDT/2024/PT SBY dated July 24, 2024 regarding the holding of the Extraordinary GMS held by PT. Yufa Kalimantan is considered an unlawful act. The decision was made based on judge's considerations which highlighted the process of calling GMS which was considered invalid, this shows that there is an inconsistency with the principle of legal certainty. Thus, the decision taken in GMS of PT. Yufa Kalimantan is considered legally flawed so that it is null and void, namely it is considered never to have existed from the start, so that every decision and action taken based on GMS loses its legal binding force.
Original paper, i.e. Figures, Tables, References, and Authors' Contacts available at http://rjoas.com/issue-2025-01/article_03.pdf