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Advances in Social Sciences Research Journal – Vol. 10, No. 3
Publication Date: March 25, 2023
DOI:10.14738/assrj.103.14316.
Koesnadi, M. (2023 Formulation for the Regulation of The Notary's Function and Role in Electronic General Meetings (GMS) of
Shareholders. Advances in Social Sciences Research Journal, 10(3). 352-361.
Services for Science and Education – United Kingdom
Formulation for the Regulation of The Notary's Function and Role
in Electronic General Meetings (GMS) of Shareholders
Merry Koesnadi
Universitas Kristen Indonesia, Jakarta
ABSTRACT
Legal politics in the era of technological development, makes the legal profession,
especially notaries, must keep up with the times. A notary in carrying out his
position as a Notary utilizes technology to facilitate the implementation of that
position. Notaries as public/state officials have the authority to make authentic
deeds. Notaries in carrying out their profession are required to adapt and keep up
with the times, the goal is to be able to face the challenges of global competition. As
time goes by, of course Science and Technology continues to develop, so that there
are facilities such as internet networks and electronic media that can be used for
two-way communication and make it possible to see each other such as chat,
teleconference, and video conference. GMS (General Meeting of Shareholders) can
also be held via teleconference, considering cost and time efficiency. Law of the
Republic of Indonesia Number 40 of 2007 concerning Limited Liability Companies
regulates things that can be done through teleconference media regulated in Article
77 Paragraph (1) of the PT Law so that it allows shareholders to hold GMS without
having to meet in person and be in one place but can carried out by teleconference
which allows shareholders to see each other and actively interact in meetings. The
method used in this research is normative legal research which is carried out as an
effort to obtain the necessary data related to the problem. The data used is
secondary data consisting of primary legal materials, secondary legal materials,
and tertiary legal materials. In addition, primary data is also used to support
secondary data legal materials. Data analysis was carried out using qualitative
juridical analysis methods. From the results of the research it can be obtained that
the GMS held by teleconference is invalid because it violates the provisions in
Article 16 paragraph (1) letter m UUJN which requires the physical presence of the
parties in the process of preparing an authentic deed so that the strength of proof
of the deed is under the hands as a result of an act which is not in accordance with
Article 16 Paragraph (1) letter m. Notaries in this case have roles and functions
related to cyber notaries. The deed of the GMS was made with a Cyber notary and
the signing is permissible and legally done because in article 77 of the Company Law
it is very clear that it is regulated then, in particular the signature gets legal
protection provided by the ITE Law but the Cyber notary has not been fully
supported by legislation in Indonesia, even though there is a possibility, it cannot
be carried out because it is limited by other laws, so cyber notaries cannot be
implemented legally in Indonesia. There is still a need for specific arrangements
regarding cyber notaries in Indonesia.
Keywords: Electronic GMS, Limited Liability Company, Notary.
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Koesnadi, M. (2023 Formulation for the Regulation of The Notary's Function and Role in Electronic General Meetings (GMS) of Shareholders.
Advances in Social Sciences Research Journal, 10(3). 352-361.
URL: http://dx.doi.org/10.14738/assrj.103.14316
INTRODUCTION
The law on limited liability companies in Indonesia has undergone several changes. Every time
a law is changed, we need to know how the change will affect the legal actions that have been
carried out under the old law. Particularly in the field of limited liability companies, we need to
know how the new law affects limited liability companies that have been established based on
the old law. Henceforth the term Limited Liability Company is referred to as "PT". The Law of
the Republic of Indonesia Number 40 of 2007 concerning Limited Liability Companies or what
is often referred to as the PT Law, is a legal reform regarding the economy, especially in the
trade sector. So, before the Law on PT. Number 1 of 1995, in Indonesia, several provisions in
the Criminal Code apply to limited liability companies, (Weetboek van Koopphandel, S.
1847:23) 1. Because the provisions in the KUHD as far as limited liability companies are no
longer in accordance with economic developments and the business world2, even though there
have been slight changes3, it is deemed necessary to reform the regulations regarding limited
liability companies4. The aim of reforming the regulation of the PT Law is to create laws that
are conducive to national development.
Limited Liability Company is a company whose capital consists of shares and responsibilities
of limited shareholder partners, which are in accordance with the number and percentage of
shares owned. In a Limited Liability Company which is a form of company regulated and
protected by the Criminal Code5. Limited Liability Companies must be established by notarial
deed, with the threat of being illegal if this is not the case6. A Limited Liability Company must
comply with the laws and regulations that govern it and the Articles of Association made at its
establishment and their amendments. Therefore, the Notary has a very important role to serve
1 J. Satrio, Perseroan Terbatas (Yang Tertutup) Berdasarkan U.U. No. 40 Tahun 2007, Bagian
Pertama, Rajawali Pers, Depok, 2020, hlm. 1-2.
2 Yang dibenarkan oleh Sudargo Gautama, Komentar atas Undang-Undang Perseroan Terbatas yang
baru 1995 Nomor 1; perbandingan dengan peraturan lama, hlm. 2.
3 Melalui S, 1938: 276 dan U.U No. 4 Tahun 1971.
4 Bagian menimbang a dan d U.U.P.T No. 1 Tahun 1995: a) bahwa perekonomian nasional yang
diselenggarakan berdasarkan atas demokrasi ekonomi dengan prinsip kebersamaan, efisiensi berkeadian,
berkelanjutan, berwawasan lingkungan, kemandirian, serta dengan menjaga keseimbangan kemajuan dan
kesatuan ekonomi nasional, perlu didukung oleh kelembagaan perekonomian yang kokoh dalam rangka
mewujudkan kesejahteraan masyarakat; d) bahwa Undang-Undang Nomor 1 tahun 1995 tentang Perseroan
Terbatas dipandang sudah tidak sesuai lagi dengan perkembangan hukum dan kebutuhan masyarakat sehingga
perlu diganti dengan undang-undang yang baru.
5 Lihat Pasal 38 Kitab Undang-Undang Hukum Dagang, “Akta perseroan itu harus dibuat dalam
bentuk otentik dengan ancaman akan batal. Para persero diwajibkan untuk mendaftarkan akta itu dalam
keseluruhannya beserta izin yang diperolehnya dalam register yang diadakan untuk itu pada panitera raad van
justitie dari daerah hukum tempat kedudukan perseroan itu, dan mengumumkannya dalam surat kabar resmi.
Segala sesuatu yang tersebut di atas berlaku terhadap perubahan-perubahan dalam syarat-syarat, atau pada
perpanjangan waktu perseroan. Ketentuan-ketentuan pasal 25 berlaku juga terhadap ini. jo Pasal 36 Kitab
Undang-Undang Hukum Dagang, “Perseroan terbatas tidak mempunyai firma, dan tak memakai nama salah
seorang atau lebih dari antara para persero, melainkan mendapat namanya hanya dari tujuan perusahaan saja.
Sebelum perseroan tersebut dapat didirikan, akta pendiriannya atau rencana pendiriannya harus disampaikan
kepada Gubernur Jenderal (dalam hal ini Presiden) atau penguasa yang ditunjuk oleh Presiden untuk memperoleh
izinnya. Untuk tiap-tiap perubahan syarat-syarat dan untuk perpanjangan waktu perseroan, harus juga terdapat
izin seperti itu”.
6 C.S.T. Kansil dan Christine S.T. Kansil, Hukum Perusahaan Indonesia, Pradnya Paramita, Jakarta,
2005, hlm. 92.
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the public in terms of drawing up deed of establishment and GMS which serve as evidence or
as a legal requirement to carry out certain legal actions.
It is unavoidable that information technology and electronic transactions are the spearheads of
the era of globalization which is now sweeping almost all over the world. Technological
progress and development will ultimately change the organizational structure and social
relations because the development of digital technology has resulted in integration or
convergence in the development of information technology, media, and telecommunications7.
GMS can also be held through teleconferences, video conferences, or other electronic media
facilities that allow all GMS participants to see and hear each other directly and participate in
the meeting.
This has been regulated in Article 77 Paragraph (1) of the PT Law. The GMS itself is a company
organ that has powers that are not granted to the Board of Directors or the Board of
Commissioners within the limits specified in this law and/or the articles of association8 .
Minutes of each holding of the GMS must be made. A GMS whose minutes are not made is invalid
and is considered to have never existed so that as a result matters decided and stipulated at the
GMS cannot be carried out. The minutes of the GMS are then set forth in the form of a notarial
deed, which can also be done by means of a notary attending the GMS activities. So that in this
case, the Notary witnessed and heard for himself the process of running the GMS, so that when
he made the deed, the deed was included as an authentic deed.
Notaries in carrying out their positions are also obliged to act in a trustworthy, honest,
thorough, independent, impartial manner, and protect the interests of parties involved in legal
actions in accordance with laws and regulations and the Notary Code of Ethics. The essence of
the Law of the Republic of Indonesia Number 30 of 2004 concerning the Office of a Notary and
its amendments to the Law of the Republic of Indonesia Number 2 of 2014 (hereinafter referred
to as UUJN), is to state that a notary deed is an authentic deed made by or before a notary
according to the form and procedures stipulated by this law. Furthermore, in carrying out his
position, the Notary is obliged to read the deed before the appearer attended by at least 2 (two)
witnesses and signed at the same time by the appearer, witness and notary. Thus, it is possible
for the notary to experience bad faith and unwanted consequences. Provisions regarding the
reading of the deed are regulated in Article 16 Paragraph (1) letter m UUJN.
Judging from the background that has been presented above, there is an imbalance between
the law in the form of the UUJN and the PT Law that applies (das sein) and in practice, especially
when it is associated with the expected law (das sollen) which upholds legal protection, legal
certainty, and justice for Notary Public. Based on the theory, this research has formulation of
the problem: (a) Is the GMS electronic according to Article 77 Paragraph (1) of the Limited
Liability Company Law Number 40 of 2007 concerning Limited Liability Companies and
according to Article 16 Paragraph (1) letter m of Law Number 2 of 2014 concerning
Amendments to Law Number 30 of 2004 regarding the position of a notary considered valid?
(b) Why does the electronic GMS, which can be used as an authentic deed, has legal force if it is
7 Didik M. Arif Mansur dan Elisatris Gultom, Cyber Law. Aspek Hukum Teknologi Informasi, Cetakan ke-2, Refika
Aditama, Bandung, 2009, hlm. 122.
8 Sebagai dimaksud dalam Pasal 1 ayat 4 Undang-Undang Nomor 40 Tahun 2007 Tentang Perseroan Terbatas.
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Koesnadi, M. (2023 Formulation for the Regulation of The Notary's Function and Role in Electronic General Meetings (GMS) of Shareholders.
Advances in Social Sciences Research Journal, 10(3). 352-361.
URL: http://dx.doi.org/10.14738/assrj.103.14316
related to the provisions of Article 77 Paragraph (1) of the Limited Liability Company Law
Number 40 of 2007 concerning Limited Liability Companies and according to Article 16
Paragraph (1) letter m of the Law Law Number 2 of 2014 concerning Amendments to Law
Number 30 of 2004 concerning the Office of a Notary? (c) What is the strength and effectiveness
of the function and role of the Notary in the General Meeting of Shareholders before and after
the electronic?
METHODS
This study uses a normative juridical method supported by empirical juridical research that is
based on regulations, norms, principles, rules, and other relevant legislation, with the function
and role of a notary in an electronic GMS in this study the object his research is legal norms,
both in laws and regulations with related issues9. To support this research by processing data
from books and literature and using literature to make this research normative based research.
Referring to the legal issues of this research, two approaches are used, namely, the statutory
approach and the analytical approach. The purpose of using these two approaches is to find out
and analyze definitions or meanings of law, principles, rules, legal systems, and various juridical
concepts. This analytical approach is carried out to have a deeper understanding of definitions
and matters related to law and to be able to analyze from a legal point of view more accurately.
The nature of the research conducted by researchers and writers is analytical descriptive,
namely describing the provisions contained in legal theory and regulations based on legislation,
namely describing the functions and roles of notaries in electronic GMS10. Data collection was
carried out through library research and field research. The data analysis technique used is
qualitative data analysis. In qualitative research which aims to find cultural patterns that make
life meaningful for people or society, the research technique used is literature such as laws and
regulations, books, journals, scientific research, and court decisions11.
RESULT AND DISCUSSION
Legitimacy of Electronic GMS
Significant developments in trade through business and business activities have made business
or business actors cooperate by forming a company. The company is a form of business entity.
In general, the division of business entities in carrying out business activities in accordance
with the provisions of the laws and regulations in force in Indonesia are grouped into 2 (two)
major parts, namely business entities with legal entities and business entities that are not legal
entities. Business entities with legal entities such as Limited Liability Companies (hereinafter
referred to as PT), Cooperatives, Foundations, Associations, Public Companies, Public
Companies, and State-Owned Enterprises. PT is a legal entity whose establishment requires a
deed of establishment made by a Notary, as an authorized public official. Then, the
establishment must obtain approval from the Minister of Law and Human Rights of the
Republic of Indonesia (hereinafter referred to as the Minister of Law and Human Rights of the
Republic of Indonesia). PT management can become the company's shareholders, unless
otherwise specified. PT management must be appointed and dismissed based on the General
Meeting of Shareholders (hereinafter referred to as the GMS). Likewise, regarding changes to
9 Amirudin dan H. Zainal Asikin, Pengantar Metode Penelitian Hukum, PT. Raja Grafindo, Jakarta, (Tt atau tanpa
tahun), hlm. 118.
10 Ibid.
11 Burhan Ashshofa, Metode Penelitian Hukum, Rineka Cipta, Jakarta, 1998, hlm. 61.
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The existence of Article 16 paragraph (7) UUJN, can lead to different perceptions where there
is no obligation for a notary to read the deed because the deed is read by the parties themselves
at the will/desires of the parties themselves. However, this has been explained again in Article
16 Paragraph (8) UUJN that even though the parties want the deed to be read alone, the Notary
still has the obligation to read the head of the Deed, make comparisons, explain the main Deed
briefly and clearly, and close the Deed. Thus, these things are in contrast to the existence of
rules in UUJN which require the physical presence of appearers before a Notary, if this is
violated it will have the following consequences:
1. The status of an authentic deed will be a private deed.
2. There will be a lawsuit against a notary by service users in the future.
3. Potential for sanctions that must be faced by a notary for not carrying out orders in
accordance with the notary office law.
Based on Article 77 Paragraph (4) of the Company Law, when holding a GMS by teleconference,
minutes of meetings must be prepared and must be agreed upon and signed by all participating
members of the GMS based on that provision. It should be noted that there are differences in
the preparation and signing of the Deed of Minutes of GMS by teleconference with conventional
GMS and in the elucidation of Article 77 Paragraph (4) of the Company Law it is explained that
the intent of being approved and signed is to be approved and signed physically or
electronically. Referring to that article, the GMS by teleconference can be signed by:
1. Physically signed for all GMS participation.
2. Electronically signed for all GMS participation; and/or
3. Partially signed by the participation of the GMS physically and electronically.
GMS by teleconference can only be applied in the form of a deed of the parties by a Notary
because it is contrary to the provisions of Article 16 Paragraph (1) letter m UUJN which requires
physical presence and signing the deed before appeasers and witnesses.
Functions and Roles of Notaries in Electronic GMS
Notaries are appointed as public officials by the authorities/state to carry out public duties in
the sense of providing services to the public in the field of civil law. Article 1 UUJN is a statutory
regulation which contains the notion of a notary which states that a notary is a general position
that acts in making authentic deeds and has other duties as stated in the relevant regulations.
Notary is a public official authorized to make authentic deeds and other authorities as referred
to in Article 15 UUJN. The position of a Notary as a public official means that the authority that
exists with a Notary has never been given to other officials as long or if this authority is not
given or does not become the authority of other officials in making authentic deeds and other
authorities, then this authority becomes the authority of the Notary.
The development of computer technology and communication technology, where various
computers can be connected by forming a computer network that leads to the development of
the internet. Based on the development of information technology, a new legal regime was born,
known as cyber law or telematics law. Based on these phenomena, the concept of cyber notary
emerged. Where the concept of cyber notary relates to the implementation of information
technology-based notary authority. In another statement it was stated that the essence of cyber
notary is about how to take advantage of technological advances for notaries in carrying out
their daily tasks, such as: