View of LEGALITY EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS IMPLEMENTATION BY SHAREHOLDERS

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LEGALITY EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS IMPLEMENTATION BY SHAREHOLDERS

Andhes Tan Satrisna

Lembaga Bantuan Hukum Kutub, Indonesia, E-mail: andhestan03@gmail.com

Submitted:March 09, 2023; Reviewed:March 21, 2023; Accepted: March 27, 2023 DOI: 10.2504/iplr.v4i1.2930

Abstract

The General Meeting of Shareholders (GMS) is the organ of the company that has the highest authority in the company, and all decisions relating to the company are stipulated through the GMS after certain conditions have been met as stipulated in the laws and regulations. The purpose of this research is to find out the implementation of the Extraordinary General Meeting of Shareholders (EGMS) and the legal consequences of the Implementation of the Extraordinary General Meeting of Shareholders organized by PT. KOLINGKAS in terms of Law Number 40 of 2007 concerning Limited Liability Companies. This study uses normative legal research methods and uses a qualitative approach. As well as using primary, secondary and tertiary sources of legal materials from books, journals, laws and regulations related to the holding of the Extraordinary General Meeting of Shareholders. The results of the study show that the legality of holding an EGMS by shareholders can be seen from the legal consequences of holding an Extraordinary General Meeting of Shareholders (EGMS) held by PT.

KOLINGKAS, in holding the Extraordinary General Meeting of Shareholders, the Plaintiff as a Member of the Board of Directors was not given any defense by the Defendants, in this case PT. KLK and also the plan to dismiss the Plaintiff as Director were not notified in advance to the Plaintiff, the implementation was carried out unilaterally, or the directors did not know about it, so that the Plaintiff was dismissed by the EGMS as stated in Deed Number 06 concerning Minutes of the Extraordinary General Meeting of Shareholders of PT. KLK does not meet the requirements and procedures set out in UUPT and is an unlawful act, then it has violated laws and regulations or it is considered that the decision is legally flawed. So that for fraudulent acts committed by parties within the company, the party conducting the Extraordinary GMS activities can be held liable for civil liability for these actions.

Keywords: EGMS Implementation, Legality, Shareholders

A. Introduction

Limited Liability Company (PT) is a form of legal entity in the Indonesian economy and is one of the pillars of national economic development. Limited Liability Company (PT) as a legal entity is clearly stated in Article 1 point 1 UUPT which states that: "Limited Liability Company is a legal entity".¹ Based on Law Number 40 of 2007 concerning PTs, it is stated that companies that carry out their business activities in the field and/or related to natural resources are required to carry out their social and environmental responsibilities.² The form of a Limited

1 BUDIONO, Herlien. Arah Pengaturan Undang-Undang Nomor 40 Tahun 2007 Tentang Perseroan Terbatas Dalam Menghadapi Era Global. Jurnal Rechts Vinding: Media Pembinaan Hukum Nasional, 2012, 1.2: 187-198.

http://dx.doi.org/10.33331/rechtsvinding.v1i2.96

2 SUNARYO, Sunaryo. Corporate Social Responsibility (CSR) Dalam Perspektif Pembangunan Berkelanjutan. Fiat Justisia:

Jurnal Ilmu Hukum, 2013, 7.1. https://doi.org/10.25041/fiatjustisia.v7no1.363 Faculty of Law, Universitas Lampung,

Bandar Lampung, Indonesia.

P-ISSN: 2723-259X E-ISSN: 2745-9284 https://jurnal.fh.unila.ac.id/index.php/iplr

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Liability Company or PT is a common form and is widely used in the business world in Indonesia because PT is an independent capital association and legal entity.

As a business entity, a Limited Liability Company is a perfect form of business, both in terms of economic unity and from a legal perspective. Limited Liability Companies have the ability to further develop themselves compared to other Business Entities, especially those that are not in the form of a Legal Entity in carrying out their role as economic actors.³ As a legal entity that is a capital partnership, a Limited Liability Company is established based on an agreement, conducting business activities with an authorized capital that is entirely divided into shares and fulfills the requirements as stipulated in the Law on Limited Liability Companies, namely Law Number 40 of 2007.⁴

GMS occupies a very sacred place as a Limited Liability Company Organ which has the highest authority in Law Number 40 of 2007 concerning Limited Liability Companies.

Shareholders are legal entities that legally own one or more shares in a company. Based on the terms of shareholders, shareholders can be divided into 2 types, namely majority and minority shareholders.⁵

Shareholders are said to be owners of PT because shares are equity participation in a PT.

Theconcept of shareholders is a theory that companies only have responsibilities to shareholders and owners and should work for their benefit.⁶ That way, actually outside the GMS, the shareholders of a limited liability company do not have any power over the company.⁷ However, it is not uncommon for the GMS to be held without going through a mechanism in accordance with the Company's Articles of Association and applicable laws, where the GMS is held directly by the Commissioner or the company's shareholders without first involving the directors, including changing directors, and this creates a conflict between the directors and the company's shareholders.

The validity of a General Meeting of Shareholders in a Company depends on its Articles of Association as long as it does not conflict with Law Number 40 of 2007 concerning Limited Liability Companies and/or depends on Law Number 40 of 2007 Limited Liability Companies as long as it is not regulated in the Articles of Association.⁸ The Extraordinary General Meeting of Shareholders (RUPS-LB) is a form of holding a GMS.⁹ Article 1 number 4 of the Company Law, regulates that;¹⁰ "The General Meeting of Shareholders, hereinafter referred to as the GMS, is a Company Organ that has authority that is not granted to the Board of Directors or the Board of Commissioners within the limits specified in this law and/or the articles of association"

Unlike the case with the annual GMS which can only be held every year, an EGMS can be held at any time when the interests of the company require it. For example, if the company wants to change the composition of the Board of Directors and the Board of Commissioners,

3Abdul Halim Barkatullah, 2017, Hukum Perseroan Di Indonesia (Mengkaji Bentuk Badan Usaha Perseroan Sebagai Suatu Badan Hukum yang Dibentuk dengan Akta Autentik dalam Menjawab Tantangan Bisnis Global), (Bandung: Nusa Media), hal.

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4Danang Wahyu Muhammad, 2018, Textbook of Business Law , (Yogyakarta: Student Library), p. 83

5 SYARIEF, Elza; JUNAIDI, Junaidi. Perlindungan Hukum Pemegang Saham Minoritas Terhadap Implikasi Praktik Insider Trading dalam Perdagangan Saham di Pasar Modal. Journal of Law and Policy Transformation, 2021, 6.1: 72-89.

http://dx.doi.org/10.37253/jlpt.v6i1.4875

6 SUBAGIYO, Dwi Tatak. Perlindungan Hukum Pemegang Saham Minoritas Akibat Perbuatan Melawan Hukum Direksi Menurut Undang-Undang Perseroan Terbatas. Perspektif, 2015, 20.1: 49-58. https://doi.org/10.30742/perspektif.v20i1.122

7Rudhi Prasetya, 2011, Perseroan Terbatas Teori dan Praktik, (Jakarta: Sinar Grafika), hal. 41

8 YUSANTI, Erlinda Vivi; AZWAR, T. Keizerina Devi; SIREGAR, Mahmul. Keabsahan Rapat Umum Pemegang Saham Yang Tidak Sesuai Anggaran Dasar. Locus Journal of Academic Literature Review, 2022, 153-160.

https://doi.org/10.56128/ljoalr.v1i3.63

9 WIBISONO, Okky Maharani. Analisis Yuridis Terhadap Keputusan Circular Resolution Rapat Umum Pemegang Saham Dalam Pemberhentian Direksi. Perspektif, 2018, 23.3: 133-141. https://doi.org/10.30742/perspektif.v23i3.640

10 AL ICHSAN, Adib, et al. Perlindungan Hukum Peserta Rapat Umum Pemegang Saham dalam Risalah di Bawah Tangan. Lex Renaissance, 2017, 2.2: 11-11. https://doi.org/10.20885/JLR.vol2.iss2.art7

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change the name, place of domicile, period of time the company was founded, and other matters that require the approval of the shareholders.

Pursuant to Article 79 paragraph (1) of Law Number 40 of 2007 concerning Limited Liability Companies, the Board of Directors has the function and authority to convene an EGMS prior to the calling for a GMS.¹¹ However, EGMS can also be held based on requests from shareholders or the Board of Commissioners.¹² As is the case with one example of holding an EGMS held by a company, but in holding the EGMS one of the shareholders was not included, resulting in a lawsuit for unlawful acts.

The Limited Liability Company Law has regulated the mechanism for implementing GMS relating to changes in management and dismissal of directors, but in reality problems are often encountered resulting from this as happened in civil cases as an example of problems that have been decided by the Supreme Court of the Republic of Indonesia through the Decision of the Supreme Court of the Republic of Indonesia number 1847 k/PDT/2013 which strengthens the Tanjungkarang District Court Decision number 122/PDT. G/2011/PN. Tjk In this case as Plaintiff Mr. Ir. Agus Marhanto as the Director who was dismissed against the shareholders of PT. KOLINGKAS based in Bandar Lampung City. The case was a civil case, where the problem arose due to the holding of an Extraordinary General Meeting of Shareholders (EGMS) by the shareholders, one of the agendas of which was the dismissal and replacement of directors and commissioners of the company. in the trial process for this case, the director of the company who had been dismissed sued the shareholders who had held the EGMS unilaterally.

That Law No. 40 of 2007 concerning Limited Liability Companies article 105 confirms that members of the board of directors can be dismissed at any time based on a GMS decision by stating the reasons, and the said decision is taken after the person concerned is given the opportunity to defend himself at the GMS, meaning that it is clear that the power over the appointment of directors is only at the GMS, but limited by the opportunity for the directors to defend themselves, as was the case in a case that was decided by the Supreme Court of the Republic of Indonesia number 1847K/Pdt/2013, which was previously decided by the Tanjung Karang District Court number 122/Pdt.G/2011/PN. TJK.

The results of the study show that the legality of holding an EGMS by shareholders can be seen from the legal consequences of holding an Extraordinary General Meeting of Shareholders (EGMS) held by PT. KOLINGKAS, in posting the Extraordinary General Meeting of Shareholders, the Plaintiff as a Member of the Board of Directors did not provide any defense by the Defendants, in this case PT. The KLK and also the plan to dismiss the Plaintiff as Director were not notified in advance to the Plaintiff, the implementation was carried out unilaterally or the director did not know about it, so that the Plaintiff was dismissed by the EGMS as stated in Deed Number 06 concerning Minutes of General Meeting of PT. KLK does not meet the requirements and procedures set out in UUPT and is an act against the law, then it has violated laws and regulations or the decision is legally flawed

Based on the description in this study, the writer will analyze normatively juridically regarding how the Extraordinary General Meeting of Shareholders (RUPS-LB) is held by PT.

KOLINGKAS in terms of Law Number 40 of 2007 concerning Limited Liability Companies and what are the legal consequences for the holding of the Extraordinary General Meeting of Shareholders (RUPS-LB) held by PT. COLLAGE.

11Indah Siti Aprilia, “Aspek Hukum Pemegang Saham dalam Perseroan dengan Satu Pemegang Saham (Single Share-holder)”, Supremasi Jurnal Hukum, Volume 3, Nomor 1 (2020), hal. 1-14

12 YUWONO, Muhammad Yusron. Perkembangan Kewenangan Rapat Umum Pemegang Saham (RUPS) Perseroan Terbatas di Indonesia. Notarius, 2015, 8.2: 207-235. https://doi.org/10.14710/nts.v8i2.10265

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B. Discussion

1. Decision on Civil Case Number 122/Pdt.G/2011/PN.TJK

A decision is a result based on a court or in other words a decision can mean a judge's statement at a court session which contains considerations based on facts, legal considerations.¹³ The judge must be able to reflect on each article text related to the facts of the incident found in court into the judge's decision which contains the values of Pancasila and the basic constitutional values in the 1945 Constitution, so that each judge's decision emits considerations of high philosophical value, concretely marked by character. decisions that are Godly, humane, maintaining unity, benevolent, and socially just for all Indonesian people.¹⁴ The purpose of a process before the court is to get a determination of how the law should be in a case.

As a case study regarding the legality of holding an Extraordinary General Meeting of Shareholders which was held unilaterally by the Shareholders, which is the Decision of the Supreme Court of the Republic of Indonesia Number 1847K/Pdt/2013 strengthening the Decision of Class IA Tanjung Karang District Court Number 122/Pdt.G/2011/ PN.TJK, the following is a summary of the case from the decision on civil case Number 122/Pdt.G/2011/PN.TJK.¹⁵

a. Case Chronology

This case is a civil case between Mr. Ir, AM, who in this case previously served as Director of PT. KLK, against Mr. Drs. RP, MSi (Commissioner of PT. KLK), Mrs. EO, (Principal Director of PT. KLK), and Miss SH (Director of PT. KLK), the three of whom are shareholders in PT. KLK, and respectively Defendant I, Defendant II , and Defendant III.

Mr Ir. AM is a confidant of Mr. Drs. RP, MSi, who was assigned to find and bring in investors for the company whose condition at that time was collapsing and needed funds to continue the company's operations. And Mr. Ir. AM and his partner, Mr. SLS, brought in an investor from Jakarta, namely Mr. TIK, and an agreement was made that Mr. TIK invest in PT.

KLK, which is a company engaged in the mining sector in Bandar Lampung.

With the agreement on this collaboration, changes to the management of the company were made with the composition of the management, namely:

1. Mrs. EO as President Director, hereinafter referred to as EO 2. Mr. SLS as Deputy Main Director, hereinafter referred to as SLS 3. Mr. AM as the Director, hereinafter referred to as AM

4. Mrs. SH as the Director, hereinafter referred to as SH 5. Mr. JA as the Director, hereinafter referred to as JA

6. Mr. Drs. RP, M.Si as Main Commissioner, hereinafter referred to as RP 7. Mr. TIK as Commissioner hereinafter referred to as TIK.

The composition of the management was made based on Deed Number 80 dated 30 December 2010.

In order to form a new image and appearance for the Company, the Board of Directors made changes to the operational system, both the bookkeeping system and the administration system, including changes to the company logo, stamps and rubrication system. In addition to revamping the company's work and financial systems and mechanisms.

The problem started with a conflict between TIK as an investor and the buyer of 60% of PT. KLK, with RP, as the person trusted by the shareholders to oversee the company's

13 PAKAYA, Usman. Bahasa Hukum Dalam Putusan Perkara Pidana (The Legal Language In The Criminal Case Decision). Negara Hukum: Membangun Hukum untuk Keadilan dan Kesejahteraan, 2017, 8.1: 151-175.

10.22212/jnh.v8i1.942

14 ADONARA, Firman Floranta. Prinsip Kebebasan Hakim dalam Memutus Perkara Sebagai Amanat Konstitusi. Jurnal Konstitusi, 2015, 12.2: 217-236.

15 Excerpt of the Class IA Tanjungkarang District Court Decision Number 122/Pdt.G/2011/PN.T jk, on March 13, 2013.

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operational implementation. Where RP was dissatisfied with the progress of the company and the performance of the Directors. Therefore, after one year of implementation of cooperation and company operations with the new management, then at the initiative of RP, on November 29, 2011, a meeting was held to evaluate the implementation of cooperation and company operations which was attended by directors and attorneys from ICT and RP, with the result being other :

1. The results of Management's work will be audited by a Public Accountant,

2. On the results of the audit will be studied the implementation of cooperation agreements, 3. RP through his Legal Counsel stated that he was no longer interested in continuing the

collaboration with ICT.

On December 7, 2011, RP and other shareholders held an Extraordinary General Meeting of Shareholders, resulting in decisions as stated in Deed Number 06 dated December 8, 2011, made by Notary Isrin in Bandar Lampung, including:

1. Dismissing SLS from his position as Deputy President Director, 2. Dismissing AM from his position as Director,

3. Dismissing JA from his position as Director, and 4. Dismissing TIK from his position as Commissioner.

b. About the verdict

On the basis of the above legal considerations, the Panel of Judges at the Class IA Tanjungkarang District Court, rendered their decision as follows : the reasons for dismissal and the members of the Board of Directors were not given the opportunity to defend themselves at the EGMS, so this constitutes an Unlawful Action;

On the basis of this decision, the Plaintiff made an appeal to the Tanjungkarang High Court, where the Panel of Judges at the Appellate level after reading and examining carefully and carefully the official copy of the decision Number 122/Pdt.G/2011/PN.TK dated 14 May 2012, Tanjungkarang High Court on March 13, 2013 Number 57/Pdt/2012/PT.TK rendered the following decision:

1. Receive an appeal from the Appellant/originally the Plaintiff;

2. Strengthening the decision of the Tanjungkarang Class IA District Court dated 14 May 2012 Number 122/Pdt.G/2011/PN.TK which the appeal is being filed against;

2. Implementation of the Extraordinary General Meeting of Shareholders (EGMS-LB) held by PT. KOLINGKAS in terms of Law Number 40 of 2007 concerning Limited Liability Companies.

The General Meeting of Shareholders (GMS) is the organ of the company that has the highest authority in the company, and all decisions related to the company are determined through the GMS after certain conditions have been met as stipulated in the laws and regulations. ¹⁶GMS is a forum for shareholders to gather and discuss various matters in the interest of the company. ¹⁷All important decisions related to company policies are decided through the GMS and are not limited to the appointment or dismissal of directors and commissioners. There are voting rights in the GMS, where the dominant number will affect every company policy decision.¹⁸

As previously explained that the mechanism for implementing the GMS is carried out through prior summons, however Article 82 paragraph (5) of the UUPT states that in the case of a summons not in accordance with the provisions referred to in paragraph (1) and paragraph

16 SINAGA, Niru Anita. Hal-Hal Pokok Pendirian Perseroan Terbatas Di Indonesia. Jurnal Ilmiah Hukum Dirgantara, 2018, 8.2. https://doi.org/10.35968/jh.v8i2.253

17 ADIPRANATA, Anak Agung Ngurah Bagus Wiradhanta. Pengaturan Rapat Umum Pemegang Saham Dalam Anggaran Dasar Perseroan Terbatas. Jurnal Hukum Sasana, 2022, 8.2: 303-309. https://doi.org/10.31599/sasana.v8i2.1252

18M. Yahya Harahap, 2009. Hukum Perseroan Terbatas, (Jakarta: Sinar Grafika). hal. 416

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(2), and the summons is not in accordance with the provisions of paragraph (3), GMS decisions remain valid if all shareholders with voting rights are present or represented at the GMS and the decision is unanimously approved. Furthermore Article 76 paragraph (4) states that: "if the GMS is present and/or represented by all shareholders and all shareholders agree to holding a GMS with a specific agenda, the GMS can be held anywhere with due observance of the provisions referred to in paragraph (3)".

So it is clear in this case that the GMS can also be held without being preceded by a GMS call and can be held outside the Company's domicile as long as it is still in the territory of the Republic of Indonesia, with a note that the minutes/minutes of the GMS include the basis for the provisions of Article 82 paragraph (5) and Article 76 paragraph (4) in the UUPT. All shareholders of the Company can immediately agree to hold a GMS with a specific agenda in the form of dismissal of members of the Board of Directors, in this case the Board of Directors must be informed later about the planned dismissal and the reasons. If there is no objection, the GMS can be closed immediately, conversely if there are objections from members of the Board of Directors who will be dismissed, the GMS provides an opportunity for the said member of the Board of Directors to defend himself and the GMS can accept or reject the defence.

Apart from the above, Article 105 paragraph (3) PT also emphasizes that binding decisions outside the GMS (circular) have the authority to dismiss members of the Board of Directors.

With the condition that before the circular decision on dismissal is issued, the member of the Board of Directors who will be dismissed is notified in advance of the planned dismissal and is given the opportunity to defend himself in writing. Furthermore, if the GMS does not accept the self-defense, a circular dismissal decision is issued. In line with the principle of who has the authority to appoint, it is he who has the authority to dismiss him. Therefore, members of the board of directors who are appointed by the GMS have the authority to dismiss them as well as the GMS.¹⁹

Dismissal of a member of the board of directors is to terminate the person concerned from the position of director before the term of office specified in the articles of association or resolution of the GMS ends. UUPT/2007 introduces two types of removal of directors . ²⁰First, stop at any time. This is regulated in article 105. Second, temporary dismissal (schorshing, suspension) is regulated in article 106 of the 2007 Company Law. Then a director can be dismissed, either for a certain reason (for cause) or without mentioning a specific reason/reason (no cause ) . UUPT, explicitly states that the dismissal of directors must state the reasons and the directors must be given the freedom to defend themselves in the GMS concerned. However, the judgment on these reasons is in the hands of the GMS.

Even so, the directors can take this matter to court if the reasons for dismissing themselves as directors can also stop their position due to the following reasons.

a. His term of office has ended and he is no longer appointed for the next term of office.

b. Stop at the request of the directors concerned, with or without any reason.

c. No longer fulfills the requirements as directors as stipulated in the articles of association or in the applicable laws.

d. The director was personally declared bankrupt by the court.

e. Constant illness that can hinder the implementation of the Director's duties. Suffering from mental pressure or mental disorders that can hinder the implementation of the Director's duties.

f. Sentenced to prison for being guilty for a relatively long time so as to hinder the implementation of the Director's duties.

19Munir Fuadi, 2010, Doktrin-Doktrin dalam Corporate Law dan Eksistensinya dalam HukumIndonesia, (Bandung : Citra Aditya Bakti), hal. 57

20 NURANDA, Bima; AFRIANA, Anita; SINGADIMEDJA, Holyness N. Status Hukum Pekerja yang Diangkat Menjadi Anggota Direksi Pada Perseroan Terbatas Tanpa Adanya Pengakhiran Perjanjian Kerja. Perspektif Hukum, 2019, 33-59.

https://doi.org/10.30649/ph.v19i1.159

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g. Leaving assignments or disappearing without news constantly.

Article 79 Paragraph (5) stipulates that the Board of Directors is required to call the GMS within a period of no later than 15 (five fifteen) days from the date the request for the holding of a GMS is received, and in Paragraph (6) it is emphasized that in the event that the Board of Directors does not call for a GMS as referred to in Paragraph (5) then the request for holding a GMS as referred to in Paragraph (2) letter (a) is resubmitted to the Board of Commissioners, or the Commissioners themselves call the GMS, as referred to in paragraph (2) letter (b). While the timeframe for submitting the letter of request is 1 (one) day, and does not reach 15 days of negligence by the Board of Directors as stipulated in Article 79.²¹

From the facts of the first level trial at the Class IA Tanjungkarang District Court, it was revealed that the implementation of the EGMS of PT. KLK was carried out as if it were in accordance with the mechanism regulated in UUPT, where previously a request for holding an EGMS was made by the Shareholders to the Board of Directors, however, the Board of Directors never received this request.²²

Then what the shareholders did in submitting the request for holding the EGMS did not deviate from the Company Law, namely from the Shareholders to the Main Director and then to the Commissioners. However, the interval for summons must meet 15 (fifteen) days of default before the next application letter is submitted to the Commissioner. The basis for this is that what is meant by the sentence "at the latest" can be interpreted as the longest limit for carrying out a request to hold an EGMS.

In the EGMS of PT. KLK, which is another problem, relates to the submission and contents of the summons, where the summons dated December 5 2011 was delivered in the framework of holding an EGMS on December 7 2011, and was not accompanied by material or reasons for the event. The summons is made one day before the EGMS is held, while Article 82 Paragraph (1) UUPT stipulates that the summons for the GMS is made no later than 14 (fourteen) days prior to the date the GMS is held, excluding the date of the summons and the date of the GMS.

Referring to the elucidation of Article 82 Paragraph (1), it explains that "The 14 (fourteen) day period" is the minimum period for calling a meeting. Therefore, the Articles of Association cannot specify a period shorter than 14 (fourteen) days except for the second or third meeting in accordance with the provisions of this law. This means that if you adopt the elucidation of Article 82 paragraph (1), then therefore the period for calling for the holding of an EGMS is only one day apart, thus contradicting the Company Law.

However, the discrepancies in holding the EGMS as described above will still be valid if the EGMS is attended and the results are unanimously approved by the Shareholders, as stipulated in Article 82 Paragraph (5) namely "in the event that the summons is not in accordance with the provisions referred to in paragraph (1) and paragraph (2), and the summons is not in accordance with the provisions of paragraph (3), the GMS decision remains valid if all shareholders with voting rights are present or represented at the GMS and the decision is approved unanimously. Therefore, as long as the stages of holding the GMS have been carried out in accordance with Article 79 and Article 82 of the Company Law, the implementation is considered valid and the results are still declared valid.²³

However, if one pays attention to the implementation process, what should be underlined is that basically the holding of the EGMS was actually carried out unilaterally by the Shareholders, where the Shareholders were directly involved in managing the Company, namely as the President Director and Commissioners, so that other members of the Board of

21Bismar Nasution, 2008, Pemahaman Perusahaan Berdasarkan Undang-Undang Nomor 40 Tahun 2007 tentang Perseroan Terbatas, (Medan : BTPN), hal. 38

22 Excerpt of the Class IA Tanjungkarang District Court Decision Number 122/Pdt.G/2011/PN.T jk, on March 13, 2013.

23 Gatot Supramono, 1996, Hukum Perseroan Terbatas Yang Baru, (Jakarta : Djambatan), hal. 85

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Directors and Commissioners who are not shareholders as if they only act as company operators, who are only responsible for the technical implementation of the Company's operations. This is not in line with the principles of Fiduciary Duties which are owned by the directors of the company, of course.

3. Legal Consequences for the Holding of the Extraordinary General Meeting of Shareholders (RUPS-LB) held by PT. KOLINGKAS

Arrangements regarding the Extraordinary General Meeting of Shareholders (EGMS) are contained in Chapter VI Article 78 paragraph (1) and Article 78 paragraph (4) of Law Number 40 of 2007 concerning Limited Liability Companies (UUPT) .²⁴ Article 78 paragraph (1) states that: "The General Meeting of Shareholders ("GMS") consists of the annual GMS and other GMS." In the explanation, it is stated that: "What is meant by other GMS in practice is often known as an extraordinary GMS." Article 78 paragraph (4) states that: "Another GMS can be held at any time based on the need for the benefit of the Company."

Based on the two articles in the UUPT, it can be said that the EGMS is a form of holding a GMS. Unlike the case with the annual GMS which can only be held every year, an EGMS can be held at any time when the interests of the company require it. ²⁵For example, if the company wants to change the composition of the board of directors and the board of commissioners, change the name, place of domicile, period of time the company was founded, and other matters that require the approval of the shareholders.

Then based on Article 79 paragraph (1) UUPT, the board of directors has the function and authority to hold an EGMS, preceded by an invitation to a GMS. However, EGMS can also be held based on requests from shareholders or the board of commissioners. The said shareholders may consist of 1 person or more shareholders who jointly represent 1/10 or more of the total shares with voting rights, unless the articles of association determine a smaller number (Article 79 paragraph (2) letter a) . The request is submitted by the shareholders or the board of commissioners to the directors by registered letter accompanied by reasons. A copy of the registered letter is submitted to the board of commissioners.

Within a period of no later than 15 (fifteen) days from the date the request for holding a GMS is received, the board of directors is required to call for a GMS. In the event that the directors do not call for the GMS, then:²⁶

a. The request to hold a GMS submitted by the shareholders is submitted back to the board of commissioners; or

b. The board of commissioners calls the GMS itself.

If a request for holding a GMS is submitted by a shareholder to the board of commissioners, the board of commissioners is required to call for a GMS within a period of no later than 15 (fifteen) days from the date the request for holding a GMS is received.

Furthermore, based on Article 105 UUPT, each board member of directors can be dismissed at any time if required per a GMS decision. The procedure for dismissing directors must include and state the reasons for the dismissal, and the right of the dismissed director to have the opportunity to defend himself. ²⁷Whereas the procedure for dismissing directors must go through clear reasons, when the reasons given are legally flawed, then in self-defense the directors can challenge the dismissal. Dismissal of the director must also be in a clear decision, such as the example of a decision letter from the GMS. Dismissal of directors without summons

24 NOOR, Rinaldy Ridwan; PRANANINGTYAS, Paramita. Prinsip Surat Kuasa Mutlak Dalam Rapat Umum Pemegang Saham Luar Biasa. JCH (Jurnal Cendekia Hukum), 2020, 5.2: 231-242. http://doi.org/10.33760/jch.v5i2.227

25 INTIHANI, Siti Nur. PIERCING THE CORPORATE VEIL DOCTRINE IMPLEMENTATION IN LIMITED COMPANY STOCKHOLDERS ACTIVITIES. Jurnal Hukum Jurisdictie, 2022, 4.1: 101-124. https://doi.org/10.34005/jhj.v4i1.95

26 MUSTAQIM, Mustaqim; SATORY, Agus. Perlindungan Hukum Pemegang Saham Minoritas Perseroan Terbatas Tertutup dan Keadilan Berdasar Pancasila. Sasi, 2019, 25.2: 199-210. https://doi.org/10.47268/sasi.v25i2.222

27Ahmad Yani dan Gunawan Widjaja, 2006, Seri Hukum Bisnis Perseroan Terbatas, (Jakarta: PT. Raja Grafindo), hal. 78

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can be legal if it adheres to Article 82 paragraphs 1 and 3 No. 40 of 2007 regarding the Company Law. even though the authority to carry out dismissal is the authority of the GMS.

Keep in mind, the decision of the GMS to dismiss members of the Board of Directors and/or the Board of Commissioners is taken after those concerned are given the opportunity to defend themselves at the GMS. If the decision is taken outside the GMS, namely through a circular resolution proposal to all shareholders, the concerned member of the Board of Directors and/or Board of Commissioners is notified in advance of the planned dismissal and is given the opportunity to defend himself in writing before it is taken. termination decision. However, giving the opportunity to defend oneself is not necessary if the person concerned has no objection to the dismissal.

Basically, the dismissed party is given the opportunity to defend himself or challenge the results of the GMS. This is because the dismissal must include a reason. If there is no reason, then it has violated the law and the law or it is considered that the decision is legally flawed.

Apart from that, giving the opportunity to defend oneself at the GMS has an imperative nature or coercive law. This is stated in article 105 paragraph 3 UUPT as follows: "In the event that the decision to dismiss a member of the Board of Directors as referred to in paragraph (2) is made by decision outside the GMS in accordance with the provisions referred to in Article 91, the member of the Board of Directors concerned is notified in advance regarding the dismissal plan and given the opportunity to defend himself before a decision on dismissal is taken.

Thus, after the explanation above, it can be seen that during the holding of the Extraordinary General Meeting of Shareholders, the Plaintiff as a member of the Board of Directors was not granted a defense by the Defendants, in this case PT. KLK and also the plan to dismiss the Plaintiff as a Director were not notified in advance to the Plaintiff, therefore the dismissal of the Plaintiff by the EGMS as stated in Deed Number 06 concerning Minutes of the Extraordinary General Meeting of Shareholders of PT. KLK is not fulfilling the requirements and procedures regulated in the Company Law and is an unlawful act. An act can be declared as an unlawful act according to the development of legal science doctrine, namely if the act violates the law, the act violates the subjective rights of others, the act is contrary to the legal obligations of the perpetrator, the act is contrary to decency, propriety and proper habits in society.

Holding an Extraordinary General Meeting of Shareholders that is not in accordance with what has been determined, both in terms of implementation carried out unilaterally or not known by the directors, can be said to be an act against the law, so that for fraudulent acts committed by parties within the company, then the party carrying out the activities of the Extraordinary General Meeting of Shareholders without the knowledge of the shareholders may be held liable for civil liability for such actions.

C. Conclution

Based on the results of data analysis and discussion that the author has described, it can be concluded as an answer to the existing problem formulation, the description is as follows :

Implementation of the Extraordinary General Meeting of Shareholders (EGMS-LB) held by PT. KOLINGKAS in terms of Law Number 40 of 2007 concerning Limited Liability Companies, that in the implementation of an Extraordinary General Meeting of Shareholders in a Limited Liability Company (PT) is regulated in Article 78 paragraph (1) and (4) of Law Number 40 of 2007 concerning Companies Limited, where the Extraordinary General Meeting of Shareholders is a General Meeting of Shareholders whose implementation is not obligatory to be held every year, but can be held at any time if it is in the interest of the company. Law Number 40 of 2007 concerning Limited Liability Companies has regulated the implementation of GMS in Limited Liability Companies, this is regulated in Article 75 to Article 91. Thus the holding of the EGMS which is carried out by PT. KLK was carried out in a hurry and as if it was made as a formality to comply with statutory provisions.

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Legal Consequences for the Holding of the Extraordinary General Meeting of Shareholders (RUPS-LB) held by PT. KOLINGKAS, that during the holding of the Extraordinary General Meeting of Shareholders, the Plaintiff as a Member of the Board of Directors was not given a defense by the Defendants, in this case PT. KLK and also the plan to dismiss the Plaintiff as a Director were not notified in advance to the Plaintiff, the implementation was carried out unilaterally or the directors did not know about it, therefore the dismissal of the Plaintiff by the EGMS as stated in Deed Number 06 concerning Minutes of the Extraordinary General Meeting of Shareholders of PT. KLK is not fulfilling the requirements and procedures regulated in the Company Law. and is an unlawful act, then it has violated the law and the law or it is considered that the decision is legally flawed. So that for fraudulent acts committed by parties within the company, the party carrying out the activities of the Extraordinary General Meeting of Shareholders can be held liable for civil liability for these actions.

The implementation of the Extraordinary General Meeting of Shareholders for the Plaintiff as a Member of the Board of Directors to submit a defense was not granted by the Defendants, in this case PT. KLK and also the plan to dismiss the Plaintiff as a Director were not notified in advance to the Plaintiff, therefore the dismissal of the Plaintiff by the EGMS as stated in Deed Number 06 concerning Minutes of the Extraordinary General Meeting of Shareholders of PT. KLK is not fulfilling the requirements and procedures regulated in the Company Law and is an unlawful act. An act can be declared as an unlawful act according to the development of legal science doctrine, namely if the act violates the law, the act violates the subjective rights of others, the act is contrary to the legal obligations of the perpetrator, the act is contrary to decency, propriety and proper habits in society.

References A. Book

Abdul Halim Barkatullah, 2017, Hukum Perseroan Di Indonesia (Mengkaji Bentuk Badan Usaha Perseroan Sebagai Suatu Badan Hukum yang Dibentuk dengan Akta Autentik dalam Menjawab Tantangan Bisnis Global), (Bandung: Nusa Media), hal. 12

Ahmad Yani dan Gunawan Widjaja, 2006, Seri Hukum Bisnis Perseroan Terbatas, (Jakarta:

PT. Raja Grafindo), hal. 78

Bismar Nasution, 2008, Pemahaman Perusahaan Berdasarkan Undang-Undang Nomor 40 Tahun 2007 tentang Perseroan Terbatas, (Medan : BTPN), hal. 38

Danang Wahyu Muhammad, 2018, Buku Ajar Hukum Bisnis, (Yogyakarta: Pustaka Pelajar), hal. 83

Gatot Supramono, 1996, Hukum Perseroan Terbatas Yang Baru, (Jakarta : Djambatan), hal. 85 M. Yahya Harahap, 2009. Hukum Perseroan Terbatas, (Jakarta: Sinar Grafika). hal. 416 Munir Fuadi, 2010, Doktrin-Doktrin dalam Corporate Law dan Eksistensinya dalam

HukumIndonesia, (Bandung : Citra Aditya Bakti), hal. 57

Petikan Putusan Pengadilan Negeri Kelas IA Tanjungkarang Nomor 122/Pdt.G/2011/PN.Tjk, pada tanggal 13 Maret 2013

Rudhi Prasetya, 2011, Perseroan Terbatas Teori dan Praktik, (Jakarta: Sinar Grafika), hal. 41

B. Journal

ADIPRANATA, Anak Agung Ngurah Bagus Wiradhanta. Pengaturan Rapat Umum Pemegang Saham Dalam Anggaran Dasar Perseroan Terbatas. Jurnal Hukum Sasana, 2022, 8.2:

303-309. https://doi.org/10.31599/sasana.v8i2.1252

ADONARA, Firman Floranta. Prinsip Kebebasan Hakim dalam Memutus Perkara Sebagai Amanat Konstitusi. Jurnal Konstitusi, 2015, 12.2: 217-236.

45

AL ICHSAN, Adib, et al. Perlindungan Hukum Peserta Rapat Umum Pemegang Saham dalam Risalah di Bawah Tangan. Lex Renaissance, 2017, 2.2: 11-11.

https://doi.org/10.20885/JLR.vol2.iss2.art7

BUDIONO, Herlien. Arah Pengaturan Undang-Undang Nomor 40 Tahun 2007 Tentang Perseroan Terbatas Dalam Menghadapi Era Global. Jurnal Rechts Vinding: Media

Pembinaan Hukum Nasional, 2012, 1.2: 187-198.

http://dx.doi.org/10.33331/rechtsvinding.v1i2.96

Indah Siti Aprilia, “Aspek Hukum Pemegang Saham dalam Perseroan dengan Satu Pemegang Saham (Single Share-holder)”, Supremasi Jurnal Hukum, Volume 3, Nomor 1 (2020), hal. 1-14

INTIHANI, Siti Nur. PIERCING THE CORPORATE VEIL DOCTRINE

IMPLEMENTATION IN LIMITED COMPANY STOCKHOLDERS

ACTIVITIES. Jurnal Hukum Jurisdictie, 2022, 4.1: 101-124.

https://doi.org/10.34005/jhj.v4i1.95

MUSTAQIM, Mustaqim; SATORY, Agus. Perlindungan Hukum Pemegang Saham Minoritas Perseroan Terbatas Tertutup dan Keadilan Berdasar Pancasila. Sasi, 2019, 25.2: 199-210.

https://doi.org/10.47268/sasi.v25i2.222

NOOR, Rinaldy Ridwan; PRANANINGTYAS, Paramita. Prinsip Surat Kuasa Mutlak Dalam Rapat Umum Pemegang Saham Luar Biasa. JCH (Jurnal Cendekia Hukum), 2020, 5.2:

231-242. http://doi.org/10.33760/jch.v5i2.227

NURANDA, Bima; AFRIANA, Anita; SINGADIMEDJA, Holyness N. Status Hukum Pekerja yang Diangkat Menjadi Anggota Direksi Pada Perseroan Terbatas Tanpa Adanya Pengakhiran Perjanjian Kerja. Perspektif Hukum, 2019, 33-59.

https://doi.org/10.30649/ph.v19i1.159

PAKAYA, Usman. Bahasa Hukum Dalam Putusan Perkara Pidana (The Legal Language In The Criminal Case Decision). Negara Hukum: Membangun Hukum untuk Keadilan dan Kesejahteraan, 2017, 8.1: 151-175. 10.22212/jnh.v8i1.942

Petikan Putusan Pengadilan Negeri Kelas IA Tanjungkarang Nomor 122/Pdt.G/2011/PN.Tjk, pada tanggal 13 Maret 2013.

SINAGA, Niru Anita. Hal-Hal Pokok Pendirian Perseroan Terbatas Di Indonesia. Jurnal Ilmiah Hukum Dirgantara, 2018, 8.2. https://doi.org/10.35968/jh.v8i2.253

SUBAGIYO, Dwi Tatak. Perlindungan Hukum Pemegang Saham Minoritas Akibat Perbuatan Melawan Hukum Direksi Menurut Undang-Undang Perseroan Terbatas. Perspektif, 2015, 20.1: 49-58. https://doi.org/10.30742/perspektif.v20i1.122

SUNARYO, Sunaryo. Corporate Social Responsibility (CSR) Dalam Perspektif Pembangunan Berkelanjutan. Fiat Justisia: Jurnal Ilmu Hukum, 2013, 7.1.

https://doi.org/10.25041/fiatjustisia.v7no1.363

SYARIEF, Elza; JUNAIDI, Junaidi. Perlindungan Hukum Pemegang Saham Minoritas Terhadap Implikasi Praktik Insider Trading dalam Perdagangan Saham di Pasar Modal. Journal of Law and Policy Transformation, 2021, 6.1: 72-89.

http://dx.doi.org/10.37253/jlpt.v6i1.4875

WIBISONO, Okky Maharani. Analisis Yuridis Terhadap Keputusan Circular Resolution Rapat Umum Pemegang Saham Dalam Pemberhentian Direksi. Perspektif, 2018, 23.3: 133- 141. https://doi.org/10.30742/perspektif.v23i3.640

YUSANTI, Erlinda Vivi; AZWAR, T. Keizerina Devi; SIREGAR, Mahmul. Keabsahan Rapat Umum Pemegang Saham Yang Tidak Sesuai Anggaran Dasar. Locus Journal of Academic Literature Review, 2022, 153-160. https://doi.org/10.56128/ljoalr.v1i3.63 YUWONO, Muhammad Yusron. Perkembangan Kewenangan Rapat Umum Pemegang Saham

(RUPS) Perseroan Terbatas di Indonesia. Notarius, 2015, 8.2: 207-235.

https://doi.org/10.14710/nts.v8i2.10265

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