LEGAL VACUUMS RELATED
TO RESTRUCTURING NON-LEGAL ENTITY COMPANIES IN INDONESIA
Marnija1, Faisal Santiago2
Faculty of Law, Universitas Borobudur, Jakarta1, 2
[email protected]1, [email protected]2
|
KEYWORDS restructuring, non-legal
entity companies, legal vacuum |
ABSTRACT This study analyzes
the legal vacuum in the restructuring process of non-legal entity companies
in Indonesia, such as Sole Proprietorships (UD), Limited Partnerships (CV),
Firms, and Civil Partnerships (Maatschap). Utilizing a normative juridical
method with a conceptual and statutory approach, the research identifies the
legal barriers faced by non-legal entity companies in restructuring. The
findings reveal that the absence of specific regulations creates legal
uncertainty and significant risks for business owners in overcoming financial
difficulties. The study recommends the need for clear legal regulations,
including partnership models and restructuring mechanisms, to support the
sustainability and competitiveness of non-legal entity companies in
Indonesia. In conclusion, more comprehensive regulations are required to
foster a conducive and sustainable business environment for this sector. |
INTRODUCTION
Company
restructuring is a strategic change process undertaken by a company to improve
its financial structure, adapt to market changes, or address internal issues
threatening its viability (Kotter, Akhtar, & Gupta, 2021). This process is
typically undertaken when a company faces significant challenges, such as
liquidity difficulties, significant revenue declines, or a structure and
operations that are no longer efficient in meeting business goals (Rashid, 2018). Restructuring is
also frequently chosen in response to broader economic environment changes,
such as financial crises, regulatory shifts, or technological developments that
render old business models irrelevant. The primary goal of restructuring is to
improve the financial performance of the company. This can be achieved by
reducing debt burdens, adjusting working capital, or streamlining operations to
increase profitability. For instance, a company burdened with large debts may
restructure its obligations by renegotiating with creditors for interest
relief, extended payment terms, or even partial debt forgiveness. Additionally,
restructuring aims to address liquidity issues�namely, the company�s ability to
meet its short-term obligations (Damijan, 2018). When cash flows
are pressured, a company may need to sell non-essential assets, streamline
operations, or seek fresh capital injections to keep operations running. Thus,
restructuring focuses not only on short-term rescue but also on creating a more
solid foundation for long-term sustainability.
In addition to
financial aspects, corporate restructuring can also involve changes in ownership
or organizational structure (Ndege & Ogollah, 2020). In some
instances, companies may pursue mergers or acquisitions as part of
restructuring to capitalize on business synergies or market expansion (DePamphilis, 2019). Changes in
ownership or management are also often made to bring new perspectives to
address existing problems. Meanwhile, restructuring in the form of changes in
capital structure is typically undertaken to achieve a more optimal composition
of debt and equity for the company, aimed at reducing financial risks and
enhancing flexibility in capital management. Essentially, restructuring seeks
to ensure that a company possesses the proper capital structure to support business
growth and face external challenges. Restructuring plays a crucial role in the
survival of companies, whether they are legal or non-legal entities (Paterson, 2020). In legal
entities, such as limited liability companies (PT), the restructuring process
may be more formal due to stringent regulations, including protection for
creditors and shareholders. On the other hand, non-legal entity companies such
as partnerships, CV, or sole proprietorships, although not bound by the same
regulations, also require restructuring to maintain operations, especially in
difficult situations. Non-legal entity companies are often more vulnerable to
financial problems due to their smaller nature and the unlimited liability of
their owners (Weidemaier, 2020).
The rapid
development of the business world has driven the creation of various product
innovations, both in goods and services, offered through conventional and
digital platforms (Frank, Mendes, Ayala, & Ghezzi, 2019; Veile,
Schmidt, & Voigt, 2022). These
innovations emerge as a result of efforts to enhance creativity and new ideas,
aimed at delivering quality products capable of competing in an increasingly
competitive market (Ferreira, Coelho, & Moutinho, 2020). This development
is reflected in the emergence of various types of businesses, ranging from
small-scale ventures like Micro, Small, and Medium Enterprises (UMKM) to large
enterprises that dominate the market. To engage in business activities,
entrepreneurs typically establish business entities or companies expected to
generate economic benefits. These business entities play a crucial role in
meeting daily needs, both directly and indirectly. Generally, companies can be
classified into two major groups: legal entities and non-legal entities. Legal
entities, such as Limited Liability Companies (PT), possess legal personality
distinct from their owners. In contrast, non-legal entity companies, such as
Usaha Dagang (UD), Persekutuan Komanditer (CV), Firma, and Persekutuan Perdata
(Maatschap), lack separate legal personality and often involve the personal
liability of their owners.
Establishing and
operating a company requires legal requirements that must be met by each type
of business entity. Legal entities, such as PT, are required to have business
licenses documented in an Establishment Deed made in the presence of a Notary.
Meanwhile, non-legal entities, such as CV and Firma, also need to be officially
registered, although not as formally as PT. However, for sole proprietorships
like UD, the establishment process is simpler as it does not require an
establishment deed; registration can be done through the relevant government
agencies. Regardless of these legal differences, managing a company, both legal
and non-legal entities, still requires good strategies and management for the
business to operate smoothly.
In running
business operations, companies often encounter challenges, especially when
there is a decline in profits or the likelihood of operational success
decreases. To address such situations, legal entities like PT have the option
to undertake restructuring. Restructuring is the process of reorganizing the
scale and structure of a company to improve its business condition, enhance
efficiency, or expand operations. This process can be executed to sharpen
business focus and ensure the company remains competitive in the market. One
form of restructuring involves making structural changes through mergers,
consolidations, acquisitions, and company splits (collectively known as MKAPP).
Mergers,
consolidations, acquisitions, and company splits are strategies that can be
employed to rescue businesses from difficulties or optimize growth
opportunities (DePamphilis, 2019; Ray, 2022). A merger occurs
when two companies combine into a new entity to strengthen their market
position. Consolidation is similar to a merger, but in consolidation, the
merging companies form a brand-new entity with a new structure and identity. An
acquisition involves one company taking control of another, either wholly or
partially, to expand market share or enter new business segments. A company
split involves separating part of a business from the parent company into a
standalone entity, usually to focus resources on a more profitable segment or
to reduce risk.
However, non-legal
entity companies often lack access to formal procedures like Debt Payment
Obligation Postponement (PKPU) or bankruptcy that apply to legal entities (Tan, Amboro, & Syarief, 2023). Therefore, it is
essential to pay special attention to the restructuring needs of non-legal
entity companies so that they can adapt and survive amid competition and
economic challenges. Without proper restructuring in terms of finance,
operations, and strategy, companies, especially non-legal entities, risk facing
greater losses and even failing to survive in the market.
In Indonesian law,
legal entities such as Limited Liability Companies (PT) have clear regulations
concerning restructuring, particularly through Law Number 40 of 2007 on Limited
Companies (UUPT) and Government Regulation Number 27 of 1998 governing mergers,
consolidations, and acquisitions of companies. The mechanisms of restructuring
are detailed, including requirements for holding General Meetings of
Shareholders (GMS) and creating minutes of GMS decisions that must be attended
and documented by a notary through a Notarial Deed. This process provides legal
certainty for legal entities when they experience performance declines or
changes in business strategies that require restructuring. However, the legal
vacuum becomes apparent when discussing non-legal entity companies, including
small businesses like Micro, Small, and Medium Enterprises (UMKM), which lack
specific rules regarding restructuring.
Non-legal entity
companies, such as CV, firms, or civil partnerships, do not have regulations
equivalent to PT regarding restructuring. Despite these non-legal entities
often facing similar challenges�such as profit declines or liquidity
crises�they do not have access to formal mechanisms regulated by law. This
presents a significant legal vacuum, as these companies cannot formally
undertake restructuring or obtain adequate legal certainty when trying to
change their business structure. The absence of clear legal regulations for
non-legal entities, particularly in situations where these companies wish to
change their form or adjust their operational scale, results in a lack of
protection and clarity for the owners and relevant parties.
This legal vacuum
becomes more critical when associated with the role of notaries. In legal
entities like PT, notaries play an important role in formalizing restructuring
decisions through the creation of Notarial Deeds that provide legal certainty
regarding the decisions made in GMS. However, for non-legal entities, there are
no formal rules providing a legal basis for notaries to perform similar
functions (Utarid, 2023). Consequently,
when non-legal entities attempt to restructure or make significant changes in
their business, they lack an integrated mechanism to ensure the legality of
such decisions. This creates gaps in legal protection, which ultimately can
complicate non-legal entities in resolving disputes or obtaining legal
recognition for the restructuring they undertake. This legal vacuum also raises
questions about legal certainty for UMKM, which form a large part of non-legal
entities in Indonesia. In the absence of law or regulation specifically governing
the restructuring of non-legal entity companies, UMKM lack clear guidance on
the steps to take if they want to change their business structure. Yet, UMKM
often face rapidly changing market conditions and require flexibility to adjust
the scale or focus of their businesses (Mahy, 2013).
METHOD�� RESEARCH
The
normative juridical research method is the approach used in legal studies that
focuses on the study of documents and legal norms. This method aims to analyze
applicable legal rules and how these rules are applied or interpreted in
specific contexts. In normative legal research, the main sources used are
statutory regulations, court decisions, and other legal literature. This
approach is highly relevant in researching legal issues that are theoretical
and conceptual in nature, such as legal vacuums in the restructuring of
non-legal entity companies, as it allows the researcher to delve into various
norms related to the issues at hand.
One approach
employed in this method is the statutory approach and the conceptual approach.
The statutory approach involves examining and analyzing various rules governing
specific issues, such as the Limited Companies Law (UUPT) and regulations
related to corporate restructuring. Through this approach, the researcher can
assess whether existing regulations are adequate or if there are legal vacuums.
Meanwhile, the conceptual approach is undertaken by understanding the
underlying legal concepts of the discussed topic, such as the concept of
corporate restructuring and the role of notaries in the legal system.
RESULT
AND DISCUSSION
1. Legal
Vacuums Related to Restructuring Non-Legal Entity Companies in Indonesia
Non-legal entity companies in Indonesia
refer to business forms established by one or several individuals without legal
personality separate from their founders. This means that the owners of
non-legal entity companies remain personally liable for all the obligations and
legal responsibilities of the company. This contrasts with legal entities,
which possess a legal entity separate from their founders, like Limited
Liability Companies (PT). In Indonesia, types of non-legal entity companies
include Usaha Dagang (UD), Persekutuan Komanditer (CV), firms, and Civil
Partnerships (Maatschap). Each form of business has different characteristics
regarding management structure, legal liability, and mechanisms for
establishment and operation.
Usaha Dagang (UD) is a form of sole
proprietorship where the owner acts as the sole manager and responsible party
for the entire business operation. UD does not have to prepare a charter or
hold meetings as required in legal entities. The owner of UD has full control
over the business but also bears personal responsibility for all debts and
liabilities of the enterprise. This means that if the UD fails or has debts,
the owner�s personal assets can be used to settle those obligations.
Persekutuan Komanditer (CV) is a form of
partnership consisting of two types of partners: general partners and limited
partners. General partners have full responsibility for managing the company
and have unlimited liability for the company�s debts, while limited partners
act only as investors and are liable only up to the amount of capital they
invest. CV is often chosen by entrepreneurs wishing to raise capital without
giving management control to all parties involved.
A firm is a partnership consisting of two
or more persons working together to run a business. In a firm, each partner has
full responsibility for managing the enterprise, and all partners are jointly
liable for the company�s obligations. In this context, each partner is able to
make managerial decisions and act on behalf of the company. However, because it
does not have a separate legal personality, each partner can also be held
personally accountable for the debts or legal issues faced by the firm.
Civil Partnerships (Maatschap) are governed
by Article 1618 of the Civil Code and involve agreements between two or more
individuals agreeing to combine efforts, skills, or assets to achieve a common
goal. In this context, there are two types of civil partnerships: general and
special. General civil partnerships involve assets contributed by the partners,
while special civil partnerships involve specific assets or labor.
�
Overall, non-legal entity companies differ
from legal entities such as PT in several respects. In terms of legal liability,
non-legal entities do not possess a separate legal entity from their founders.
Therefore, the founders are fully responsible for all company obligations,
including debts and legal claims faced by the company. In contrast, a PT
possesses a separate legal entity, so the liability of shareholders is limited
only to the amount of capital they invest, and their personal assets are
protected from company obligations.
In terms of management structure, non-legal
entity companies tend to be simpler. For example, in UD, the owner operates the
business without needing formal meetings or approval from other parties. In CV,
business control usually lies with general partners, while the limited partners
only act as capital providers. Firms and civil partnerships are also directly
managed by partners without strict formal procedures. In contrast, PT is
regulated with a more complex management structure, such as having a General
Meeting of Shareholders (GMS), board of directors, and board of commissioners
with clear responsibilities and functions as stipulated in Law Number 40 of
2007 on Limited Companies (UUPT).
Regarding legal personality, legal entities
such as PT are recognized as separate entities by the law, meaning that
companies can sign contracts, own assets, and be parties in lawsuits
independently. Non-legal entity companies, in contrast, do not have separate
status, meaning that the owners or partners bear direct responsibility for the
legal actions taken by the company.
Debt restructuring for companies involves
several methods, including Hair Cut, which means the cancellation of some or
all debts; Debt Rescheduling, which is the rescheduling of debt payments; Debt
to Asset Swap, which is the transfer of assets to creditors; and Debt to Equity
Swap, which is the conversion of debt into shares. Meanwhile, company
restructuring can be carried out through mergers, consolidations, acquisitions,
splits, liquidations, bankruptcies, asset revaluation, reorganizations, and
recapitalizations. According to the Explanation of Article 43 paragraph (3) of
the UUPT, corporate restructuring includes MKAPP (Mergers, Consolidations,
Acquisitions, Splits).
In mergers, the merging company dissolves,
while its assets and liabilities transfer to the receiving merger company,
according to Article 128 of the UUPT. Consolidation involves the merging of two
or more PTs into a new PT. Acquisitions transfer control through the takeover
of a company's shares, as regulated in Articles 125 and 128 of the UUPT. A
company split can be purely in nature, where the parent company dissolves after
asset transfers, or non-pure, where the parent company remains after a portion
of its assets is transferred.
Non-legal entity companies in Indonesia do
not have specific regulations, so their governance refers to the Civil Code
(KUHPerdata) and the Commercial Code (KUHD). Usaha Dagang (UD) is a sole
proprietorship run by an entrepreneur with personal funds. Although not
specifically regulated by law, the existence of UD is accepted in practice as a
business actor. UD is managed using personal funds, meaning the company�s
assets are wholly owned by that individual, who is also responsible for all
debts incurred by the company. To establish a UD, no notarial deed is required,
only registration with the relevant government agency as regulated in Article 6
of Law Number 3 of 1982 on Mandatory Company Registration.
Firms, governed from Articles 16 to 35 of
the KUHD, are forms of civil partnerships established for conducting business
under a common name. Business activities in a firm involve joint liability,
where each partner bears responsibility for all legal acts conducted by other
partners. The establishment of a firm must be conducted in the form of an
authentic deed in the presence of a notary and subsequently registered at the
Clerkship of the District Court, in accordance with the provisions of Articles
22 and 23 of the KUHD. Meanwhile, Persekutuan Komanditer (CV) lacks clear
regulation in the KUHPerdata or KUHD but is regulated in Articles 19 to 21 of
the KUHD, which outlines the presence of passive (komanditer) and active
(komplementer) partners.
CV is a combination of PT and a firm, with
different responsibilities for the limited partners and general partners. Like
firms, establishing a CV requires an authentic deed and registration at the
Clerkship of the District Court.
Civil Partnerships (Maatschap) are
regulated under Article 1618 of the Civil Code and involve agreements between
two or more individuals agreeing to contribute to a partnership to share
profits. In this context, there are general and special civil partnerships.
General civil partnerships involve assets contributed by the partners, while
special civil partnerships involve specific items or labor. Given that
non-legal entities like UD, CV, firms, and civil partnerships have no specific
regulations on restructuring, this creates a legal vacuum when they seek to
reorganize through MKAPP (Merger, Consolidation, Acquisition, Split).
Even though there is no specific
regulation, the UMKM Law and the Job Creation Law provide alternatives for
UMKM, including UD, CV, and firms, to adopt partnership patterns in business
development, such as core-plasma patterns, subcontracts, and franchises. These
partnership patterns are regulated in Article 26 of the UMKM Law and Article 26
of the Job Creation Law, aiming to provide support in financing, production,
marketing, and technology enhancement. Partnership agreements must be
documented in writing, which can take the form of either registered deeds or
authentic acts before a notary.
Regarding the restructuring of non-legal
entity companies, although no specific regulations currently exist, these
companies can undertake MKAPP with other non-legal entities. Changes in
ownership or the status of non-legal business entities can be processed through
the Department of Trade and Industry, without requiring approval from the
Ministry of Law and Human Rights. However, the potential for legal uncertainty
arises from regulatory vacuums that may result in overlaps between the UMKM Law
and the Job Creation Law. According to Gustav Radbruch, legal certainty
consists of two aspects: the certainty provided by the law and certainty within
the law. This legal vacuum creates uncertainty regarding legal actions that the
public can take, highlighting the necessity for clearer regulations to meet the
legal needs of the public.
2. Legal
Reconstruction of Regulations on Restructuring Non-Legal Entity Companies in
Indonesia
�
The legal vacuum concerning the regulation
of non-legal entity companies' restructuring in Indonesia is significant.
Companies like Usaha Dagang (UD), Persekutuan Komanditer (CV), firms, and civil
partnerships (Maatschap) lack specific regulations governing their
restructuring processes. This absence means that they cannot adhere to
structured and standardized restructuring procedures, leading to confusion and
legal uncertainty. For example, the ambiguity surrounding restructuring
mechanisms like mergers, acquisitions, or dissolutions in the context of
non-legal entity companies can inhibit business actors from making strategic
decisions to save their enterprises from crises.
The challenges faced by non-legal entity
companies in restructuring without clear regulations include a lack of
understanding of their rights and obligations. In many cases, non-legal entity
owners may not realize that they have options for restructuring, and when they
attempt to do so, they often encounter administrative and legal hurdles.
Without clear regulations, they risk becoming entangled in processes that are
inappropriate or even illegal, ultimately harming everyone involved, including
employees, creditors, and business partners. This legal vacuum can also lead to
injustice, where non-legal entity companies do not receive the same legal
protections as legal entities, resulting in a clear disparity within the
business ecosystem.
In restructuring, there are fundamental
differences between the regulations applicable to legal entities, such as
Limited Liability Companies (PT), and non-legal entities. For PTs, there are
clear and detailed regulations, including the Limited Companies Law (UUPT) and
related government regulations. These regulations outline the procedures that
must be followed for restructuring, including provisions concerning mergers,
acquisitions, and liquidation. The strict governance of these procedures
includes the requirement to obtain approval from the General Meeting of
Shareholders (GMS), notarial deeds, and ratification by the Ministry of Law and
Human Rights. Thus, PTs have a more guaranteed and secure legal path for
undertaking restructuring.
In contrast, non-legal entity companies
lack a similar legal framework, making restructuring processes far more complicated.
For example, concerning legal liability, the owners of UD or CV are personally
responsible for all debts of the company. In restructuring situations, this
means they face potentially greater personal risk than PT owners, who are only
liable for the capital contributed. Furthermore, the procedures for
restructuring in non-legal entities often lack formality and standardization,
resulting in greater legal risk. These differences underscore the importance of
having clear and specific regulations for non-legal entities to effectively
undertake restructuring while ensuring adequate legal protection.
To address the existing legal vacuum
concerning the restructuring of non-legal entity companies in Indonesia, there
is a need to develop regulations that are more specific. These regulations
could take the form of laws or government regulations that provide clear
guidance on the restructuring procedures available to non-legal entity
companies, such as Usaha Dagang (UD), Persekutuan Komanditer (CV), firms, and civil
partnerships (Maatschap). Such proposals aim to create the legal clarity
desperately required to assist business owners in understanding the options
available to them in challenging situations. In this regulation, various
restructuring mechanisms, including debt haircuts, debt rescheduling, and
partnership models, should be established. With these regulations in place,
non-legal entity companies can operate within a more secure legal framework and
gain better access to legal protections and their rights.
Regulations in the form of laws or
government regulations could also specify the procedures that must be followed
in restructuring, including registration requirements, reporting to relevant
authorities, and creditor protection. For instance, the application procedures
for obtaining restructuring authorization could be clarified to ensure that all
interested parties are protected. Additionally, it is crucial to elucidate the
responsibilities and rights of stakeholders during the restructuring process so
that the risk of conflicts can be reduced, and legal certainty can be enhanced.
Such policies will not only provide legal assurances for non-legal entity
companies but may also boost their competitiveness in the market, given that
they will have a clear legal framework to operate under.
In efforts to conduct restructuring,
non-legal entity companies can adopt various models and partnership patterns in
line with the provisions established by the Micro, Small, and Medium
Enterprises Law (UU UMKM) and the Job Creation Law. One partnership model that
can be applied is the core-plasma pattern, where non-legal entity companies can
collaborate with larger companies to access resources, markets, and technology.
Through this model, smaller companies can focus on production while receiving
support from larger firms in terms of funding and marketing. The subcontracting
model can also be applied, where non-legal entity companies act as
subcontractors for larger projects, providing them with opportunities to
continue operating and generating revenue without managing the entire business
process independently.
The benefits of these partnership models
are significant for both non-legal entity companies and their partners (Armour & Sako, 2020; Baranovska,
Zavertneva-Yaroshenko, Dryshliuk, Leshanych, & Huk, 2022; Sultoni,
Suryandari, & Susilowati, 2024). First,
partnership models allow non-legal entity companies to alleviate the risks
faced during restructuring by sharing burdens and resources. Secondly, such
partnerships can enhance production capacity and operational efficiency,
enabling non-legal entity companies to better adapt to market dynamics.
Thirdly, through strategic partnerships, non-legal entity companies can gain
access to broader markets and new clients, thereby increasing growth
opportunities in the future. With clear regulations regarding partnership
models in restructuring, it is hoped that non-legal entity companies will be
encouraged to take more proactive measures in restructuring their businesses,
thereby enhancing their resilience to the challenges faced in an increasingly
competitive business environment.
Legal reconstruction regarding the
regulation of restructuring non-legal entity companies in Indonesia is a vital
step to address the challenges encountered by business actors in this sector.
Given that non-legal entities like Usaha Dagang (UD), Persekutuan Komanditer
(CV), firms, and Civil Partnerships (Maatschap) lack specific regulations
governing restructuring, creating a legal framework that provides clarity and
certainty is essential. One step in legal reconstruction that should be taken
is the formulation of a new law explicitly governing restructuring procedures
and mechanisms for non-legal entity companies. Such a law is expected to
clarify various restructuring options, such as debt transfers, asset
reorganizations, and partnership models that non-legal entity companies can
adopt.
Moreover, legal reconstruction must also
encompass the clarification of the rights and obligations of stakeholders,
including business owners, creditors, and other parties involved in the
restructuring process (Odetola, 2018). With clear
regulations, business actors will be able to understand the necessary steps to
take in challenging situations without fear of unforeseen legal consequences.
Additionally, such regulations can protect creditors to ensure they have clear
rights in the restructuring process, thus fostering a more conducive business
climate. Legal reconstruction also includes aligning existing regulations, such
as the UMKM Law and the Job Creation Law, to avoid overlaps that may cause
confusion and legal uncertainty. Through the harmonization of these
regulations, a comprehensive legal system supporting the development of
non-legal entity companies, particularly regarding restructuring, is
anticipated. This is crucial since the micro and small business sectors are the
backbone of the national economy, and providing adequate support for them
during the restructuring process will positively impact overall economic
stability.
CONCLUSION
In the
restructuring of non-legal entity companies in Indonesia, it is evident that
the existing legal vacuum poses various challenges for business actors such as
Usaha Dagang (UD), Persekutuan Komanditer (CV), firms, and Civil Partnerships
(Maatschap). In the absence of clear regulations, the restructuring process
becomes complex and risky, hindering companies' ability to adapt to changing
market conditions and manage financial difficulties. Therefore, systematic
legal reconstruction is needed to create a legal framework that provides
clarity on procedures and mechanisms for restructuring.
Recommendations for the development of more
specific regulations concerning the restructuring of non-legal entity companies
are crucial, both in the form of new laws and government regulations. This move
will provide legal certainty and protect the rights of all stakeholders,
including business owners and creditors. Additionally, regulating models and
partnership patterns consistent with the UMKM Law and the Job Creation Law can
serve as effective alternatives in the restructuring process, thereby enhancing
the competitiveness of non-legal entity companies in Indonesia. Through these
efforts, it is hoped that non-legal entity companies can optimally contribute
to national economic growth and achieve business sustainability amidst the
ongoing global challenges.
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