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Moral Responsibility of Curators
in the Liquidation of State-Owned Legal Entity Companies
Hasan Basri1*, Ahmad Redi2
1,2Universitas Borobudur, East Jakarta, DKI Jakarta, Indonesia
Email: basri.kyp2@gmail.com1*, redi.ahmad2010@gmail.com2
ABSTRACT
This study aims to investigate the ethical responsibilities of curators
in managing the liquidation process of State-Owned Enterprises (SOEs). The
method used is a literature review, examining various relevant sources to gain
a deep understanding of the moral and ethical dilemmas faced by curators during
the SOE liquidation process. The study's findings indicate that the moral
responsibilities of curators encompass several critical aspects: protecting
public interests by ensuring the continuity of essential services provided by
SOEs tao the community, considering the welfare of
affected employees by providing fair compensation and support in finding new
employment, ensuring fairness for all stakeholders involved in the liquidation
process through high transparency to support accountability, upholding
integrity and high business ethics to avoid conflicts of interest and ensuring
decisions are based on mature moral considerations, and considering the social
and environmental impacts of SOE liquidation and seeking solutions that
minimize negative consequences. This research provides important insights for
curatorial practices and the ethical and responsible management of SOE
liquidations. Curators are also advised to continuously enhance their skills
and expertise through ongoing training and education to ensure the liquidation
process is conducted fairly, transparently, and responsibly.
Keywords: Responsibility; Moral; Curator; Liquidation.
INTRODUCTION
In the current era of globalization, business is not solely
measured from a financial profit perspective, but also from the standpoint of
social and moral responsibility
State-owned legal entities often serve as pivotal
pillars in a nation's economy. They are involved in vital sectors such as
energy, infrastructure, and other public services
One of the biggest challenges in the liquidation of
state-owned legal entities is maintaining a balance between financial interests
and moral and ethical considerations
The liquidation of state-owned legal entities also
involves managing assets that often hold significant value and strategic impact
Article 1 paragraph 1 of the Bankruptcy Law states
that bankruptcy generally refers to a public seizure, whereby when a debtor is
declared bankrupt by the Commercial Court, all of the
debtor's assets (both individuals and legal entities) are transferred to the
Curator. Therefore, discussing bankruptcy issues cannot be separated from
discussions about the Curator, especially regarding the duties and
responsibilities of the Curator in a bankruptcy process. In Article 70
paragraph (2), it is clearly stated that a Curator appointed by the Commercial
Court Judge's Panel is someone who has special skills and expertise in managing
and/or settling bankruptcy assets and is registered with the Ministry of Law
and Human Rights of the Republic of Indonesia
The curator's authority to secure the bankrupt assets
is an authority that cannot be delayed in its implementation or can be said to
be immediately enforceable (uit overbear bij vooraad) as regulated in
Article 16 of the Bankruptcy Law. It means that immediately after the debtor is
declared bankrupt, the curator's duty and authority to manage
and liquidate the bankrupt assets to the fullest extent possible must
commence promptly, even if the bankrupt debtor files a cassation appeal to the
Supreme Court against the decision
Liquidation and bankruptcy are two closely
related legal processes, but they have differences in the context of treatment
towards State-Owned Legal Entities (BUMN) companies
In
the context of State-Owned Enterprises (BUMN), liquidation and bankruptcy have
different legal implications. Liquidation of a BUMN can occur when the company
is no longer deemed viable to operate, for example, due to continuous losses or
poor business prospects. The liquidation process is usually regulated by
applicable laws and may involve government authorities or supervisory bodies
that have jurisdiction over the BUMN. On the other hand, although BUMNs may not
be in the same position as private companies regarding bankruptcy, they can
still face serious financial issues. In such cases, BUMNs can seek legal
protection by filing for bankruptcy, which allows them to undergo restructuring
or liquidation processes under court supervision.
The relationship between liquidation and
bankruptcy is sometimes complex, especially when BUMNs face financial problems.
In some cases, liquidation may be a better option than bankruptcy, especially
if the company cannot be rehabilitated or restructuring is not feasible.
However, such decisions must be made considering the broad legal, financial,
and social implications, as well as moral responsibilities towards various
stakeholders involved. Thus, the role and moral responsibility of curators are
crucial in the liquidation process of State-Owned Legal Entities (BUMNs)
The moral role of curators in the liquidation
process of State-Owned Legal Entities (BUMNs) holds significant importance,
especially considering the wide-ranging impacts of liquidation on various
stakeholders and the general public
Considering the importance of these factors, the
moral responsibility of curators is key to ensuring that the liquidation
process of BUMNs is conducted fairly, transparently, and responsibly while
minimizing its negative impacts on various stakeholders involved. It is not
only about ensuring financial success in liquidation but also about maintaining
integrity and fairness in performing crucial public functions.
RESEARCH METHODS
The
method used in writing this applied thesis is the descriptive analytical
method. This method involves collecting and using data that clearly depict the
issues directly in the field, followed by analysis and conclusions to resolve
the problem
The
literature review method is extensively employed in this research to gather, analyze, and synthesize existing knowledge and studies
related to 2W EV ride-hailing services and their implications for
environmentally friendly mobility in Indonesia. This method is crucial as it
provides context, identifies gaps in existing literature, supports field data
analysis, and guides the selection of appropriate methodologies. Additionally,
the socio-legal juridical approach is used to examine issues from a legal and
systematic perspective, while the sociological approach is applied to study
problems within society to obtain facts, identify issues, and seek resolutions
RESULTS AND DISCUSSION
The curator profession emerges as a
consequence of bankruptcy law. Curators are institutions established by
law to manage and liquidate bankrupt assets
Article 72 of the Bankruptcy Law explicitly states
that curators are responsible for errors or negligence in carrying out
management and/or liquidation tasks that result in losses to the bankrupt
estate. Curators are responsible for their actions while performing management
and liquidation tasks of the bankrupt estate. Based on the Bankruptcy Law, the
authority of curators includes: securing the bankrupt
estate, recording the bankrupt estate, selling the bankrupt estate, and
continuing the business of the bankrupt debtor
State-Owned Legal Entity Companies as legal entities
are born based on a legal process, so their termination must also go through a
legal process. The Company Law divides the termination of a company into three stages.
The first stage is dissolution. Article 142 paragraph (1) determines six
reasons for the dissolution of a company. Since being dissolved, companies or
companies or BUMN cannot carry out legal actions, except for liquidation. Every
outgoing letter must include the words "in liquidation" after the
company name as a form of notification to third parties. Within 30 days of the
dissolution, the liquidator is obliged to announce it in newspapers and state
news, and thereafter notify the Minister of Law and Human Rights (hereinafter
referred to as the Minister). If this is not done, the dissolution of the
company does not apply to third parties, and the liquidator is personally
liable for losses to third parties. Creditors are given 60 days from the announcement
to submit their claims. If the creditor does not submit a claim, even though
there are remaining assets after liquidation, the creditor can submit a claim
to the district court within 2 years from the date of the announcement
Liquidation is a loanword from English, derived from
the term "liquidation," which means determining the amount of unclear
debt, debt settlement, or the process of converting assets into cash,
especially to settle debts. This is clarified in Article 150 paragraphs (2) and
(3) of the Company Law. The court may order the liquidator to retrieve the
remaining proceeds of liquidation that have been distributed to shareholders
(Article 150 paragraph (4) of the Company Law). Liquidation means the settlement
and termination of the company's affairs.
The third stage is the termination of legal entity
status. After the liquidation process is completed, the liquidator is required
to be accountable for their duties to the General Meeting of Shareholders
(RUPS) or the court that appointed them. If the accountability is accepted, the
liquidator is released from their responsibility (acquit et de charge). Within
30 days, the liquidator must announce the results of the liquidation in
newspapers and notify the Minister. Upon receiving this notification, the Minister
records the termination of the company's legal entity status and announces it
in the official gazette, as well as removing the company's name from the list
of companies. Liquidation must be carried out for dissolved companies,
regardless of whether they have conducted business activities or have assets at
the time of dissolution. Article 142 paragraph (2) of the Company Law
stipulates, "In the event of dissolution of a Company, ... it must be
followed by liquidation carried out by a liquidator...." One of the
reasons for dissolution is the company being inactive for three consecutive
years or the wealth having diminished to such an extent that it is impossible
to continue business operations.
The curators assigned to handle the liquidation of
State-Owned Legal Entity (BUMN) companies must possess a variety of skills and
broad knowledge. The following are some of the trainings they receive to
prepare themselves for this task:
1.
Business Law and
Corporate Law.
Training in business law and corporate law is
crucial for curators. They need to understand the fundamentals of law related
to company liquidation, including legal processes, legal obligations, and the
rights of stakeholders involved.
2.
Financial Management.
Knowledge of financial management will assist
curators in understanding the financial aspects of liquidation, such as asset
valuation, debt restructuring, and allocation of available financial resources.
3.
Accounting and Audit.
Training in accounting and audit is necessary to
comprehend the company's financial statements, analyze financial conditions,
and ensure compliance with applicable accounting standards.
4.
Negotiation and
Dispute Resolution.
Good negotiation skills are essential in the
liquidation process, especially in resolving disputes with creditors,
contractors, or other involved parties. Curators need to be trained in
effective negotiation techniques and dispute-resolution strategies.
5.
Communication and
Presentation.
Effective communication with various
stakeholders, including shareholders, employees, government, and media, is key
to success in the liquidation process. Training in communication and
presentation will help curators convey information clearly and persuasively.
6.
Professional Ethics
and Social Responsibility.
Training in professional ethics and social
responsibility will assist curators in carrying out their duties with high
integrity and considering the social impact of the decisions they make.
7.
Leadership and
Project Management.
Liquidation of state-owned enterprises can be a
complex project requiring efficient and effective management. Training in
leadership and project management will help curators in planning, organizing,
and managing the liquidation process effectively.
8.
Understanding of
Industry and Regulations.
Curators need to have a good understanding of
the industry in which the state-owned enterprise operates, as well as the
regulations governing that industry. It will help them identify risks and
opportunities associated with liquidation.
With comprehensive training in various fields,
curators will be better prepared to face the complex challenges in the
liquidation process of state-owned enterprises (BUMN). This training not only
assists them in managing the financial and legal aspects of liquidation but
also in considering the social impact, ethics, and moral responsibilities
associated with their tasks. With a wealth of training and competencies
possessed by curators, it must also be accompanied by an increased role of
Moral Curators, to provide a sense of justice and ensure a feeling of safety
and comfort in carrying out their roles and responsibilities in handling
liquidation cases.
The moral responsibility of curators in handling cases
of liquidation of state-owned enterprises (BUMN) encompasses various important
aspects to be considered. Here are some things that curators must consider in
carrying out their duties with integrity and moral responsibility:
1.
Protection of Public
Interests.
One of the primary responsibilities of curators
is to ensure that public interests are protected in the liquidation process.
They must ensure that the services provided by the BUMN continue to operate
efficiently or are well-organized after liquidation. It may involve ensuring
the continuity of vital services such as transportation, energy, or
communication, or seeking alternative solutions if these services are
threatened.
2.
Employee Welfare.
Curators have a moral responsibility to consider
the welfare of employees affected by liquidation. They must ensure that the
liquidation process is conducted fairly towards employees, including providing
fair wage payments, assisting in finding new employment, or providing
counseling services if needed.
3.
Fairness for
Stakeholders.
Curators must ensure that the liquidation
process is conducted considering the interests of all involved stakeholders,
including creditors, contractors, suppliers, and others. They must take
necessary steps to ensure that asset distribution is done fairly and
transparently while considering the rights and legal obligations of all parties
involved.
4.
Transparency and
Accountability.
Curators have a moral responsibility to conduct
the liquidation process with high transparency and accountability. They must
provide clear and open information to all involved parties, including
shareholders, the government, and the general public.
This includes disclosing information about the company's financial condition,
the liquidation process, and the decisions made.
5.
Integrity and
Business Ethics.
Curators must act with high integrity and adhere
to high business ethics principles in carrying out their duties. They must
avoid conflicts of interest and ensure that the decisions they make are based
on mature moral considerations, not just financial or political considerations.
6.
Social and
Environmental Impact.
Curators must consider the social and
environmental impact of the liquidation of state-owned enterprises. They must
ensure that the liquidation process does not cause unnecessary harm to society
or the environment, and if possible, they should seek solutions to minimize
such negative impacts.
Taking these aspects into consideration, curators can
carry out their duties with high integrity, transparency, and moral
responsibility in handling cases of liquidation of state-owned legal entity
companies. It is not just about achieving financial or legal goals, but also
about maintaining integrity and fairness in managing assets owned by the public
collectively. In principle, the moral responsibility of Curators cannot be
separated from theories other than independence, namely transparency theory.
Transparency theory is highly relevant in the context
of the moral responsibility of curators in the liquidation process of
state-owned legal entity companies (BUMN). Transparency refers to the practice
of providing obvious, open, and easily accessible information to all involved
parties. In the context of the liquidation of BUMN, the relationship between
transparency theory and the moral responsibility of curators can be explained
as follows:
1.
Providing Clear and
Open Information.
The moral responsibility of curators includes
the obligation to provide clear and open information to all parties involved in
the liquidation process, including shareholders, employees, creditors, and the general public. This includes information about the
company's financial condition, liquidation plans, decision-making processes,
and their impact on various stakeholders.
2.
Supporting
Accountability and Responsibility.
Transparency helps support the accountability
and responsibility of curators for their decisions and actions in the
liquidation process. By providing clear and open information, curators enable
others to understand and evaluate their decisions, as well as provide feedback
or criticism if necessary.
3.
Preventing Conflicts
of Interest.
Transparency can also help prevent conflicts of
interest in the liquidation process. By conducting the process openly and
transparently, curators can minimize the risk of allegations or perceptions of
bias or abuse of power.
4.
Respecting
Stakeholders' Right to Know.
Transparency theory also respects stakeholders'
right to know relevant information in the liquidation process. Curators have a
moral responsibility to ensure that these rights are recognized and respected,
and to provide adequate access to necessary information for all parties
involved.
5.
Building Trust and
Legitimacy.
Consistent and effective transparency practices
in the liquidation process help build trust and legitimacy for curators and the
institutions involved. By providing clear and open information, curators can
demonstrate their integrity and strengthen public trust in the ongoing
liquidation process.
Thus, transparency theory plays an important role in
guiding the moral responsibility of curators in the liquidation process of
state-owned legal entity companies. The principles of transparency help ensure
that the liquidation process is conducted with integrity, accountability, and
fairness and strengthen public trust in the institutions and decision-makers
involved.
Continuous development and training are key to
ensuring that the moral responsibility of curators is continuously enhanced and
developed in the future. Here are some ways in which the moral responsibility
of curators can be continuously trained and developed:
1.
Ethics and
Professional Ethos Training.
Special training programs can be held to discuss
ethical issues relevant to the work of curators. This includes discussions
about ethical dilemmas that may be encountered in the liquidation process and
how to handle them with integrity and courage.
2.
Case Studies and
Discussions.
Real case studies of the liquidation of
state-owned legal entity companies from various countries can be a valuable
learning resource for curators. Discussions about these cases can help them
understand the moral and ethical complexities involved in the liquidation
process.
3.
Conflict Management
Training.
Since liquidation often involves various parties
with different interests, training in conflict management can help curators
handle conflicts wisely and avoid detrimental conflicts of interest.
4.
Effective
Communication Training.
Training in effective communication can help
curators convey information clearly and persuasively to various parties
involved in the liquidation process. This includes the ability to listen
empathetically and manage communication conflicts.
5.
Development of
Management and Leadership Skills.
Strong management and leadership skills are
essential for curators to successfully manage the liquidation process. Training
in this area can help them become effective leaders capable of addressing
complex challenges.
6.
Technical Training.
Training in law, finance, accounting, and
project management is also necessary to ensure that curators have the knowledge
and skills needed to carry out their duties effectively.
7.
Continuing Education.
Curators need to continuously update their
knowledge and skills through continuing education and advanced training. They
can attend seminars, conferences, or courses relevant to their field to stay
updated with the latest developments in law, ethics, and best practices.
By engaging in continuous training and development,
the moral responsibility of curators can be continuously enhanced and developed
to ensure that they are prepared to face moral and ethical challenges in
handling the liquidation of state-owned legal entity companies.
CONCLUSION
In liquidating state-owned companies
(BUMN), curators bear significant moral responsibility to ensure the process is
conducted with integrity, transparency, and fairness. They must protect public
interest by maintaining essential services and considering the welfare of
affected employees, including fair payments and employment support. Ensuring
fairness for all stakeholders, such as creditors, contractors, and suppliers,
and maintaining transparency to support accountability and minimize conflicts
of interest is crucial. Curators should adhere to high ethical standards, act
with integrity, and avoid conflicts of interest while also considering the
social and environmental impacts of liquidation, seeking solutions to minimize
negative effects. Continuous training and education help curators handle
ethical challenges, ensuring a fair, transparent, and responsible liquidation
process.
Abdussamad, Z. (2021). Metode
Penelitian Kualitatif.
CV Syakir Media Press.
Ansari,
T. S. (2019). State, bumn (state owned
enterprises-soes) and role of law in economic development: a theoretical
approach. Britain International of Humanities and Social Sciences (BIoHS) Journal, 1(2), 20–29.
Apriliyanti, I. D., & Kristiansen, S. O.
(2019). The logics of political business in state-owned enterprises: the case
of Indonesia. International Journal of Emerging Markets, 14(5),
709–730.
Castañeda, F., Traverso, D. B., & Carpentier, J.-B. (2020). State-owned enterprises and
industrial development in Latin America. In The Routledge handbook of
state-owned enterprises (pp. 164–178). Routledge.
Dewi,
A. T., Kamello, T., Lubis, M. Y., & Ikhsan, E. (2022). Comparison of Law Concerning the
Concept of Privatization of State-Owned Enterprises in Civil Law and Common
Law. Second International Conference on Public Policy, Social Computing and
Development (ICOPOSDEV 2021), 319–323.
Fuady, M. (2013). Hukum Jaminan Utang. Erlangga.
Gu,
B., & Xu, C. (2020). Treatment Standards of State-Owned Enterprises as
Public Entities: A Clash or Convergence across International Economic Law? Hong
Kong LJ, 50, 1025.
Gupta,
V. (2022). ROLES OF THE STATE AND STATE-OWNED ENTERPRISES. Asian Journal of
Multidimensional Research (AJMR).
Harahap., M. Y. (2008). Hukum Acara Perdata, Cet. 8. Sinar Grafika.
Harjono, D. K. (2023). The Legal Position Of
Intellectual Property As Bankruptcy Property And Its Management And Settlement
By The Curator. BALTIC JOURNAL OF LAW & POLITICS: A Journal of Vytautas
Magnus University, 16(3), 889–899.
Hidayatussalam, H., & Hasyim, D. (2022). Legal
Analysis Of State Financial Loss In State Owned Business Entity (BUMN). Jurnal Pendidikan Dan Konseling
(JPDK), 4(5), 2693–2701.
Ishak,
A., Ilmar, A., & Sitorus, W. (2021). Analysis of
Government Policies in Structuring State Owned Corporation Through the
Formation of Holding Companies. Jurnal
Hukum Volkgeist, 6(1), 38–45.
Marantika, A., Rathod, H. S., Chauhan, R.,
Putri, L. T., & Maseleno, A. (2020). Ethics in
Finance, Financial Globalization and Stakeholder Responsibility: New Concept
of Corporate Finance. International Journal of Psychosocial Rehabilitation,
24(1), 1556–1563.
Marzuki., P. M. (2010). Penelitian
Hukum. Kencana Prenada
Media.
Milhaupt,
C. J., & Pargendler, M. (2017). Governance
challenges of listed state-owned enterprises around the world: national
experiences and a framework for reform. Cornell Int’l LJ, 50,
473.
NGUTRA,
T. (2016). Hukum Dan Sumber-Sumber Hukum. Jurnal Supremasi, XI(Sumber Hukum), 193–210.
Panjaitan,
M. J. S., Samosir, T., Nurrahmawati,
P., & Simanjuntak, R. T. A. (2023). Legal
Politics of Management and Settlement of Acts Against the Law of Limited
Liability Company Organs. Journal of Law and Sustainable Development, 11(12),
e1843–e1843.
Paula,
P. (2021). Tanggung Jawab Perseroan Terbatas Dalam Likuidasi. Acta Diurnal Jurnal
Ilmu Hukum Kenotariatan
Dan Ke-PPAT-An, 4(2), 332–349.
https://doi.org/10.23920/acta.v4i2.595
Shubhan, M. Hadi. (2012). Hukum Kepailitan Prinsip, Norma, dan Praktik di Pengadilan. Kencana Prenada Media.
Simanjuntak., R. (2003). Kemandirian
Tugas Kurator dalam Melakukan Pengurusan dan Pemberesan dalam Kepailitan.
Soemitro, R. H. (1988). Metodologi
Penelitian Hukum dan Jurimetri.
Ghalia Indonesia.
Sunaryo,
S., & Sukardi, D. H. (2023). Tanggung
Jawab Kurator Dalam Perkara Kepailitan Berdasarkan Prinsip Independensi. Justicia Sains: Jurnal
Ilmu Hukum, 8(1), 42–53.
https://doi.org/10.24967/jcs.v8i1.2309
Sutedi, A. (2009). Metode
Penelitian Hukum. Sinar
Grafika.
Szarzec, K., Dombi, Á., & Matuszak, P. (2021). State-owned enterprises and economic
growth: Evidence from the post-Lehman period. Economic Modelling, 99,
105490.
Tryandari, M. (2021). Legal protection for
bankruptcy curators in the resolution of bankruptcy cases. Journal of Law
and Legal Reform, 2(3), 421–438.
Wijayati, A. (2019). Verdicts on Bankruptcy
Cases: Study Case on Judges’ Legal Behaviour. JL Pol’y
& Globalization, 81, 82.
Yuhelson. (2010). TANGGUNG JAWAB KURATOR
DALAM PELAKSANAAN PEMBAGIAN BOEDEL PAILIT BERDASARKAN KEDUDUKAN PARA KREDITOR
(Studi PT. Peony Blanket Industry Indonesia). Diponegoro.
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