As A Result Of The Law Of The Foundation Deed Of Foundation Containing Legal Defects (Study Of Supreme Court Decision Number 404 PK/PDT/2018)

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The Legal Consequences of the Deed of Changes in Foundations Containing Legal Defects: Study of Supreme Court Decision Number 404 PK/PDT/2018

Introduction

The establishment of a foundation is a significant milestone for any organization, and it requires careful planning and execution. However, the process of changing the name of a foundation can be complex and prone to errors. This article discusses the legal consequences of the Deed of Changes in Foundations containing legal defects, using the Supreme Court Decision Number 404 PK/PDT/2018 as a case study.

Background

The Maluku Darussalam Education Foundation was established through a Notary Deed Number: 01 of 2008 on October 6, 2008. However, this deed apparently has no strong legal basis because it refers to the previous deed that has lost legal force and was rejected by the Ministry of Law and Human Rights of the Republic of Indonesia. This caused the establishment of the Maluku Darussalam Foundation as a new foundation, separated from the Darussalam Foundation.

Methodology

This study uses a normative legal approach, analyzing applicable laws and regulations, such as Law Number 16 of 2001 in conjunction with Law Number 28 of 2004 concerning Foundations and Notary Position Law Number 2 of 2014. This study is descriptive analytic, which tries to describe, explain, and analyze problems that arise, and find the right solution.

The Role of the Notary

The notary plays a crucial role in the establishment and management of a foundation. The notary is responsible for verifying the deed he makes, and in this case, the notary should realize that the deed which is the basis for making a deed of change in the foundation has lost legal force. This notary's negligence is a violation of the principle of caution and accuracy that should be upheld in his profession.

Human Rights and the Role of the Ministry of Law and Human Rights

The Ministry of Law and Human Rights has the obligation to conduct supervision and ratification of the notary deed. In this case, the ministry should refuse the ratification of the foundation's change deed given the primary deed that is referred invalid.

The Role of the Owner of the Foundation or Heir

The Foundation Change Deed should involve the decision of the foundation owner or the heirs. The absence of their involvement in the process of making a deed is a fatal legacy.

The Legal Consequences of the Deed of Changes in Foundations Containing Legal Defects

The Supreme Court Decision Number 404 PK/PDT/2018 revealed a few important points:

  • Unexpected Deed: Deed of Change Foundations that are legally flawed do not have legal force and are considered never.
  • The unclear status of the foundation: The legal status of the Maluku Darussalam Foundation is unclear because it is formed based on a deed that is legally flawed.
  • Problems with Assets Management: The assets owned by the foundation are not clearly defined due to the unclear legal status of the foundation.
  • Internal Conflict: The unclear status of legal status can trigger internal conflicts in the foundation, especially related to ownership and management of assets.
  • Notary Responsibility: Notary can be subject to legal sanctions for their negligence in making a deed.

Solutions and Recommendations

To avoid similar issues in the future, the following solutions and recommendations are proposed:

  • Making a New Deed: Darussalam Foundation Maluku needs to carry out the process of making a new foundation change deed, by involving all interested parties, in accordance with applicable laws and regulations.
  • Legal status arrangement: The Ministry of Law and Human Rights needs to arrange the legal status of the Maluku Darussalam Foundation, taking into account the decision of the Supreme Court Number 404 PK/PDT/2018.
  • Increased alertness: Notary needs to increase alertness and caution in verifying the deeds they make.
  • Strengthening Supervision: The Ministry of Law and Human Rights needs to strengthen the supervision of the notary deed, to prevent the issuance of a deed that is legally flawed.

Conclusion

This case becomes an important learning for all parties involved in the management of the foundation. It is essential to ensure the legality and validity of all documents relating to the foundation, to avoid legal issues in the future. The notary, the Ministry of Law and Human Rights, and the owner of the foundation or heir must work together to ensure that the foundation is established and managed in accordance with the applicable laws and regulations.
Frequently Asked Questions (FAQs) about the Legal Consequences of the Deed of Changes in Foundations Containing Legal Defects

Q: What is the significance of the Supreme Court Decision Number 404 PK/PDT/2018?

A: The Supreme Court Decision Number 404 PK/PDT/2018 is a landmark decision that highlights the importance of ensuring the legality and validity of all documents relating to the foundation. It emphasizes the role of the notary, the Ministry of Law and Human Rights, and the owner of the foundation or heir in preventing legal issues.

Q: What are the consequences of making a deed of change in a foundation that contains legal defects?

A: The consequences of making a deed of change in a foundation that contains legal defects include:

  • Unexpected Deed: Deed of Change Foundations that are legally flawed do not have legal force and are considered never.
  • The unclear status of the foundation: The legal status of the Maluku Darussalam Foundation is unclear because it is formed based on a deed that is legally flawed.
  • Problems with Assets Management: The assets owned by the foundation are not clearly defined due to the unclear legal status of the foundation.
  • Internal Conflict: The unclear status of legal status can trigger internal conflicts in the foundation, especially related to ownership and management of assets.
  • Notary Responsibility: Notary can be subject to legal sanctions for their negligence in making a deed.

Q: What are the solutions and recommendations to avoid similar issues in the future?

A: To avoid similar issues in the future, the following solutions and recommendations are proposed:

  • Making a New Deed: Darussalam Foundation Maluku needs to carry out the process of making a new foundation change deed, by involving all interested parties, in accordance with applicable laws and regulations.
  • Legal status arrangement: The Ministry of Law and Human Rights needs to arrange the legal status of the Maluku Darussalam Foundation, taking into account the decision of the Supreme Court Number 404 PK/PDT/2018.
  • Increased alertness: Notary needs to increase alertness and caution in verifying the deeds they make.
  • Strengthening Supervision: The Ministry of Law and Human Rights needs to strengthen the supervision of the notary deed, to prevent the issuance of a deed that is legally flawed.

Q: What is the role of the notary in the establishment and management of a foundation?

A: The notary plays a crucial role in the establishment and management of a foundation. The notary is responsible for verifying the deed he makes, and in this case, the notary should realize that the deed which is the basis for making a deed of change in the foundation has lost legal force. This notary's negligence is a violation of the principle of caution and accuracy that should be upheld in his profession.

Q: What is the role of the Ministry of Law and Human Rights in the establishment and management of a foundation?

A: The Ministry of Law and Human Rights has the obligation to conduct supervision and ratification of the notary deed. In this case, the ministry should refuse the ratification of the foundation's change deed given the primary deed that is referred invalid.

Q: What is the role of the owner of the foundation or heir in the establishment and management of a foundation?

A: The Foundation Change Deed should involve the decision of the foundation owner or the heirs. The absence of their involvement in the process of making a deed is a fatal legacy.

Q: What are the implications of the Supreme Court Decision Number 404 PK/PDT/2018 for the management of foundations in Indonesia?

A: The Supreme Court Decision Number 404 PK/PDT/2018 has significant implications for the management of foundations in Indonesia. It emphasizes the importance of ensuring the legality and validity of all documents relating to the foundation, and highlights the role of the notary, the Ministry of Law and Human Rights, and the owner of the foundation or heir in preventing legal issues.