The Responsibility Of The Directors Of The Persero In The Management Of State Capital Participation In The Event Of A Loss

Feb 27, 2025 by ADMIN 123 views

The Responsibility of the Directors of the Persero in the Management of State Capital Participation in the Event of a Loss

Introduction

In the context of Indonesia's legal framework, a limited liability company with the status of a State-Owned Business Entity (BUMN) plays a crucial role in the country's economic development. As a legal entity subject to private law through Law Number 40 of 2007, Persero is also bound to public law related to the participation of state capital, which is managed based on Law Number 17 of 2003 concerning State Finance. The responsibility of the Board of Directors in the management of capital participation is of utmost importance, especially when facing a situation of losses.

The Role of the Directors of the Persero

The Directors of the Persero have a significant responsibility for carrying out business activities that aim to benefit the company and the community. However, the fact that business contains risk must be recognized; not infrequently, the decisions taken can lead to losses. In this situation, a question arises about the applicable law: does this problem need to be seen from the perspective of private law or public law? Also, whether the loss suffered by the Persero is considered a state loss or not?

The Objectives of BUMN Management

One of the main objectives of the existence of BUMN is to improve the welfare of the community. Therefore, BUMN management must be carried out with the principle of Good Corporate Governance (GCG), where the Directors are required to act with good faith, show caution in making business decisions, and commit to loyalty responsibilities towards the company. When the Directors have followed these principles but still suffered losses, they can submit a defense through the doctrine of "Business Judgment Rule" mandated in Article 97 paragraph (5) of the Limited Liability Company Law (UUPT).

Analysis of Directors' Responsibility in the Middle of Losses

It is essential to understand that when the government includes its capital into the company, the legal relations between the State and the State Assets separated in the form of shares are different. Although the government acts as a shareholder, losses experienced by Persero cannot be considered as a state loss. This happens because when capital participation takes place, the country's wealth has been transformed into BUMN capital, the operation of which is carried out independently from the state budget.

The directors who run the company are also expected to make strategic decision making and can be accounted for. Through the application of GCG, the Board of Directors has a strong foundation for managing the risks faced by the company. In this case, if a loss occurs despite prioritizing GCG principles, the Board of Directors can include the reasons and justification behind every decision taken. This provides legal protection for the Board of Directors when they have to face the consequences of unfavorable business decisions.

The Complexity of Directors' Responsibility

Thus, the responsibility of the Board of Directors in the management of state capital participation becomes very complex. Although there are inherent risks in business decision making, the application of GCG principles and understanding of the division of responsibilities between the State and SOEs must always be put forward. Losses that occur in the company are not the state loss, but rather the implications of business decisions taken in the corporate context.

Conclusion

In conclusion, the responsibility of the Board of Directors in the management of state capital participation is a critical issue that requires careful consideration. The application of GCG principles and understanding of the division of responsibilities between the State and SOEs are essential in ensuring the sustainability and success of BUMN as an entity that is not only oriented to profit, but also on efforts to improve the welfare of the community. Clarity in the legal aspects and accountability of the Board of Directors is very important to ensure the success of BUMN.

Recommendations

Based on the analysis, the following recommendations can be made:

The Board of Directors must prioritize the application of GCG principles in managing the company.
The Board of Directors must be transparent and accountable in their decision making process.
The government must provide clear guidelines and regulations on the management of state capital participation.
The Board of Directors must be aware of the division of responsibilities between the State and SOEs.

Future Research Directions

Future research can focus on the following areas:

The impact of GCG on the performance of BUMN.
The role of the Board of Directors in managing the risks faced by the company.
The relationship between the State and SOEs in the management of state capital participation.
The implications of business decisions taken in the corporate context.

By understanding the responsibility of the Board of Directors in the management of state capital participation, we can ensure the success and sustainability of BUMN as an entity that is not only oriented to profit, but also on efforts to improve the welfare of the community.
Frequently Asked Questions (FAQs) about the Responsibility of the Directors of the Persero in the Management of State Capital Participation in the Event of a Loss

Q: What is the role of the Directors of the Persero in the management of state capital participation?

A: The Directors of the Persero have a significant responsibility for carrying out business activities that aim to benefit the company and the community. They are required to act with good faith, show caution in making business decisions, and commit to loyalty responsibilities towards the company.

Q: What is the principle of Good Corporate Governance (GCG) in the management of BUMN?

A: GCG is a principle that guides the management of BUMN, where the Directors are required to act with good faith, show caution in making business decisions, and commit to loyalty responsibilities towards the company. This principle is essential in ensuring the sustainability and success of BUMN.

Q: What is the doctrine of "Business Judgment Rule" mandated in Article 97 paragraph (5) of the Limited Liability Company Law (UUPT)?

A: The doctrine of "Business Judgment Rule" is a defense mechanism that allows the Board of Directors to submit a defense in case of losses, provided that they have followed the principles of GCG and acted with good faith.

Q: Can losses experienced by Persero be considered as a state loss?

A: No, losses experienced by Persero cannot be considered as a state loss. This happens because when capital participation takes place, the country's wealth has been transformed into BUMN capital, the operation of which is carried out independently from the state budget.

Q: What is the relationship between the State and SOEs in the management of state capital participation?

A: The relationship between the State and SOEs in the management of state capital participation is based on the principle of separation of assets, where the State's wealth is transformed into BUMN capital, the operation of which is carried out independently from the state budget.

Q: What is the importance of transparency and accountability in the decision making process of the Board of Directors?

A: Transparency and accountability are essential in the decision making process of the Board of Directors, as they provide legal protection for the Board of Directors when they have to face the consequences of unfavorable business decisions.

Q: What are the implications of business decisions taken in the corporate context?

A: The implications of business decisions taken in the corporate context can be significant, as they can lead to losses or gains for the company. It is essential for the Board of Directors to be aware of these implications and make informed decisions.

Q: What are the recommendations for the Board of Directors in managing the company?

A: The recommendations for the Board of Directors in managing the company include prioritizing the application of GCG principles, being transparent and accountable in their decision making process, and being aware of the division of responsibilities between the State and SOEs.

Q: What are the future research directions in the area of BUMN management?

A: The future research directions in the area of BUMN management include the impact of GCG on the performance of BUMN, the role of the Board of Directors in managing the risks faced by the company, the relationship between the State and SOEs in the management of state capital participation, and the implications of business decisions taken in the corporate context.