Tanggung Gugat Direksi Perseroan Terbatas terhadap Penerbitan Corporate Guarantee tanpa Persetujuan RUPS (Studi Putusan Nomor 147/Pdt.G/2022/PN Bpp)

Abstract

The development of financing practices in the business sector has encouraged the use of corporate guarantees as a security instrument to strengthen creditors' confidence in debtors. In practice, corporate guarantees are frequently issued by the Board of Directors of a Limited Liability Company to secure the obligations of subsidiaries, affiliated companies, or other third parties. Legal issues arise when a corporate guarantee is issued without the approval of the General Meeting of Shareholders (GMS), despite the potential to materially burden the company's assets. This study therefore examines the regulation of corporate guarantees under Law Number 40 of 2007 concerning Limited Liability Companies, the liability of the Board of Directors for issuing corporate guarantees without GMS approval, and the conformity of the legal reasoning adopted by the Panel of Judges in Decision of the Balikpapan District Court Number 147/Pdt.G/2022/PN Bpp. This research is normative juridical legal research employing statutory, conceptual, and case approaches. The primary legal materials consist of the Indonesian Civil Code, Law Number 40 of 2007 concerning Limited Liability Companies, and Decision of the Balikpapan District Court Number 147/Pdt.G/2022/PN Bpp. The analysis applies the doctrines of fiduciary duty, ultra vires, and the business judgment rule to assess the limits of the Board of Directors' authority and its legal liability in issuing corporate guarantees. The results of this study indicate that corporate guarantees are not expressly regulated under the Limited Liability Company Law. Nevertheless, their issuance remains subject to the provisions governing the authority of the Board of Directors and the requirement for GMS approval. From the perspective of civil law, a corporate guarantee constitutes a form of guarantee agreement (borgtocht) that is accessory to the principal agreement and must therefore satisfy the legal requirements for a valid agreement under Article 1320 of the Indonesian Civil Code. From the perspective of company law, however, its validity must also comply with the provisions concerning the authority of the Board of Directors, the company's articles of association, and GMS approval under Article 102 of the Limited Liability Company Law. Accordingly, Article 1320 of the Indonesian Civil Code and Article 102 of the Limited Liability Company Law regulate different legal aspects and complement one another. This study further concludes that issuing a corporate guarantee without the required GMS approval primarily constitutes an ultra vires act by the Board of Directors. However, such a violation does not automatically give rise to the personal liability of the Board of Directors. Personal liability may only arise where fault or negligence, corporate loss, and a causal relationship between the directors' conduct and the loss can be established. Thus, the doctrine of ultra vires serves as the basis for assessing whether the directors exceeded their authority, whereas an unlawful act constitutes the basis for imposing legal liability only when all of its legal elements have been fulfilled. The analysis of Decision Number 147/Pdt.G/2022/PN Bpp demonstrates that the Panel of Judges generally applied the Limited Liability Company Law appropriately by examining the directors' authority and the requirement for GMS approval. Nevertheless, the judgment did not clearly distinguish between ultra vires acts, unlawful acts, the validity of the Corporate Guarantee Deed, and the personal liability of the Board of Directors. The judgment also lacked a comprehensive analysis of the protection afforded to good-faith third parties. Therefore, the legality of issuing a corporate guarantee without GMS approval should be assessed on a case-by-case basis by considering the directors' authority, the specific facts of the case, the validity of the principal agreement, and the fulfillment of the legal requirements for directors' liability.