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Eduvest �
Journal of Universal Studies Volume 3 Number 2, February, 2023 |
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THE ROLE OF CURATORS AND LIQUIDATORS IN SOLVING PROBLEMS INSOLVENT LIMITED LIABILITY COMPANY |
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Jefri Yuliyanto Waisapi Universitas Yapis Papua Jayapura, Indonesia Email: [email protected] |
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ABSTRACT |
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This study aims to review and analyze the role of
curators in insolvency in limited liability companies, as well to review and
analyze the role of liquidators in the settlement of assets bankrupt limited
liability companies. By using normative legal research methods, which
use secondary data based on primary legal sources, secondary legal materials
and tertiary legal materials, data collection through literature studies or
document studies, as well qualitative analysis. The results showed that the
curator's decision in bankruptcy in limited liability company begins in the
process of managing and settling bankruptcy assets, starting from the stage management, appointment and appointment
qualified curators, settlement bankruptcy assets by the curator, so that from
the date bankruptcy statement decision, all executors of the management and
settlement of bankruptcy assets are handed over to the curator. After Limited
Liability is declared bankrupt, the task of
the curator in clearing the assets in Limited Liability is to block assets of
a Limited Liability Company. That the role of the liquidator in the
settlement assets of a bankrupt limited liability company is that the
liquidator has a position in the settlement of the assets of the dissolved
company, so that it has the rights, obligations and responsibilities of the
liquidator in the settlement of the assets the dissolved limited
liability company, the liquidator has responsibility if the liquidation has
not ended. The liquidator has a great responsibility from the time dissolution Limited Liability Company to Limited
Liability Company legal entity status Limited Liability Company ends |
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KEYWORDS |
Role, Curator, Liquidator, Limited Liability
Company, Bankruptcy |
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This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International |
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INTRODUCTION
The emergence of the
COVID-19 pandemic outbreak which originally appeared locally in Wuhan, China,
then spread throughout the world, including Indonesia, and became a global
health crisis. This health crisis has had a major impact on the world
community, especially Indonesia. Health is a basic human need that has been
constitutionally guaranteed. �Protection
of the right to health of every citizen is formulated in the 1945 Constitution,
namely in Article 28H paragraph (1) it is stated, that: "Everyone has the
right to live a prosperous life born and mentally, to live, and to have a good
and healthy living environment and the right to obtain health services. �However, due to the health crisis, it has an
impact on various people's lives and nations, including the economic life of
the nation and its people (Dewinagara,
2022).
The health crisis that
has occurred since 2019 has had a huge impact on people's lives to date. The
business world is the world that has suffered the most and felt the impact of
the crisis. Not a few businesses have gone out of business, while those who are
still able to survive are experiencing financial difficulties. Economic
activities in Indonesia can be organized through various fields of business,
which can be carried out by yourself, private individuals, or through a form of
business entity or company (Sjawie,
2013).
In the past few
years, from various forms of business entities or existing companies, doing
business by forming a limited liability company (hereinafter referred to as a
PT) or commonly called a company, has become the most popular and common model
for parties who run businesses. Nowadays, the number of universities in
Indonesia can even be said to far exceed other forms of business such as firms,
companies, cooperatives and others (Thurston,
2012).
Economic development
has an impact on the development of the business world which makes business
actors more interested in establishing a legal entity in this case a PT,
because the government also issued a more comprehensive provision on PT, namely
Law Number 40 of 2007 concerning Limited Liability Companies (hereinafter referred
to as UUPT). Business forms such as PT have their own charm, one of which is
because the company's wealth is separated from the personal wealth of the
company owner. The company's assets include capital paid up by shareholders
into the PT, fixed assets and other
assets recorded in the company's name (Iskandar,
2013).
The Company is a
legal entity, this means that the company is a subject that can be burdened
with rights and obligations just as humans, in general, have their own wealth
that is separate from the wealth of its management. In carrying out its
activities, what is seen is the company, because the person responsible is the
company as a legal entity in this
case represented by the board of directors (Mukharom
& Muryati, 2015).
What entrepreneurs
really hope for is a pt that has been established continuously, as it is known
that ideally one of the main characteristics of a company is its activities
that are carried out continuously. However, in reality that often happens
between expectations and reality is different on the ground. Likewise, for a
PT, there is almost nothing in the mind of the founders of PT, who intends to
dissolve the PT that he has established. But it can happen (Sembiring
& SH, 2011).
Based on the
provisions of Article 142 paragraph (1) of the UUPT, it states that an LLC can
be dissolved due to the following:
a) Based on the Decision of the GMS;
b) Because the period of establishment stipulated in the articles of
association has expired;
c) Based on the court's determination;
d) With the revocation of insolvency based on a commercial court decision
having permanent legal force, the company's insolvency assets are not
sufficient to pay the costs of insolvency;
e) Because the company's bankruptcy assets that have been declared bankrupt
are in an insolvent state as stipulated in the Law on Insolvency and
Postponement of Debt Payment Obligations; or
f) Because of the revocation of the Company's business license, it requires
the company to liquidate in accordance with the provisions of the laws and
regulations.
A dissolved company
will follow the dissolution process in accordance with the provisions of the
law. The Company cannot be dissolved at the same time, the company's debts must
be repaid, and the company's bills must be collected, so that the assets of rieel are in cash. The company's assets in the form of fixed �assets and
other company assets must be sold, until they become cash. So all the rights �of the company must be in the form of cash
(cash), must be liquit (liquid) to be distributed to
shareholders in proportion to the amount of share value owned by each
shareholder (Prasetya,
2011).
In addition, the
company also disbanded due to insolvency, due to the economic crisis. Infact, there is a tendency for the business world to go
bankrupt, an effort can be made. The efforts made by the government are through
economic recovery (economic recovery),
by means of improving the economic order, including updating the legal rules
that regulate it. Among them is the renewal of insolvency law whose main function
is to become a signpost for the settlement of accounts receivable which has
been an important problem, especially to overcome bad debts carried out by
private entrepreneurs (Handayani,
2020).
The government's
initiative to revise the Insolvency Act, as the Insolvency Act is necessary to:(Maxon, 2002)
0. Avoid conflicts if there are several creditors at the same time requesting
payment of receivables from the debtor.
1. To avoid any creditor who wants to get privileges, who demand their rights
by selling the debtor's property or controlling it themselves without paying
attention to the interests of other debtors/creditors.
2. To avoid any frauds committed by the debtor himself, for example, the
debtor seeks to benefit one or several certain creditors, which is detrimental
to other creditors.
The Law on Insolvency
has undergone various changes because most of the material is no longer in
accordance with the development and legal needs of the community, so on
November 18, 2004, Law Number 37 of 2004 concerning Insolvency and Postponement
of Debt Payment Obligations (hereinafter referred to as UUK and PKPU) was
passed (Aditya,
2012).
The existence of the
Insolvency Act gives great hope to creditors or debtors to be able to save
their wealth. In fact, what happens in bankruptcy cases, both creditors and
debtors often experience losses suffered by debtors.
In the insolvency Act
it is said that the duty of the curator is to carry out the management and or
settlement of insolvent property (vereffening) (Raihanna & Atalim,
2021). In carrying out his duties the curator
is not required to obtain the consent of or give advance notice to the
insolvent debtor or one of the organs of the debtor, even in circumstances
outside of insolvency such consent or notice is required.
The Insolvency Act
defines insolvency as the general confiscation of all the assets of the
insolvent debtor whose management is carried out by the Curator under the
supervision of the supervising Judge. Based on Article 1 number 1 of the
Insolvency Law (UUK) and Postponement of Debt Payment Obligations (PKPU) the
Curator is one of the important elements in an Insolvency. According to UUK and
PKPU which states that, "The curator is the Balai
Harta or an individual person appointed by the Court
to manage and clean up the property of the bankrupt debtor under the
supervision of the Supervisory Judge"
The curator is a
party who plays an important role in an insolvency case. Because the curator is
in charge of carrying out the settlement of bankruptcy property. As soon as the
debtor is declared bankrupt by the Commercial Court, the bankrupt by law is no longer
authorized to manage or transfer his property which has become bankruptcy
property. Therefore, it is the Curator who carries out all legal actions both
management and transfer of bankruptcy property under the supervision of the
Supervisory Judge (Marpaung
et al., 2022).
It is generally said
that the main task of the curator is to carry out the management and settlement
of bankruptcy property. Based on this statement, it can be seen that the
Curator who has a very decisive position for the completion of the settlement
of bankruptcy assets. According to Article 67 paragraph 2 of the Insolvency
Law, it is emphasized that in carrying out his duties the curator does not
require approval from the debtor/insolvent company's organs, although outside
the insolvency the approval is required. However, it is necessary to know that
in its management the curator has obstacles in carrying out his duties.
In addition, in the
event that the dissolution of the PT begins at the time specified in the
decision of the GMS, which then requires "settlement" actions that
require time to carry out the settlement. This grace period to undergo
settlement is called the company's "liquidation" grace period. The
company's settlement process is usually closely related to the company's assets
or assets contained in the company. The company's assets can be in the form of
movable or immovable goods. Company settlement is an action taken in a
company's liquidation process to record and sell or disburse the company's
assets in liquidation to be distributed to entitled parties, such as creditors
or shareholders (Prasetya,
2011)(Fuady,
2003).
Liquidation (vereffening, winding-up) means the settlement and
termination of the company's affairs after the decision of the GMS to terminate
or dissolve the company. And as long as the settlement of the dissolution or
settlement is ongoing, its existence and validity are "The Company in
liquidation" or "the Company in dissolution" (vereffening, liquidation or settlement) (Harahap, 2021). In the liquidation process, a
liquidator will be appointed who is entitled to distribute the company's assets
to creditors and all other entitled persons according to the order stipulated
by various laws and regulations.
As for what is meant
by liquidator (liquidateur, liquidator) is a person
who appoints or is appointed as the liquidation organizer. He assumed the
obligation to regulate and settle the company's property or bundles. In
addition, the liquidator also has responsibility for losses arising from errors
or omissions in carrying out liquidation.
A liquidator can be
taken from the Board of Directors, because the Board of Directors knows the
situation of the company best. However, it is not always the case that
shareholders appoint the Board of Directors as the liquidator, because the
possibility of dissolution occurs precisely because of mismanagement.
Therefore, those who become liquidators other than the Board of Directors can
also be other parties, depending on the decision of the GMS at the time of
declaring the company to start in the liquidation period.
There is a possibility
that a company does not require a grace period for liquidation. By the time the
dissolution was taken, the wealth had been completely exhausted to the degree
of "zero". So in this situation, there is no
need for a grace period for liquidation, but at the same time the company can
be completely disbanded.
In the process of
dissolution of a PT, the process of termination of business is also taken,
notification of dissolution to business partners, if the bank, notification to
the customer for example, or if the dissolution, the business will be
transferred to another party such as dissolution due to a merger, then the
process of transferring assets, transferring business, and transferring
customers to other parties is also taken.
The dissolution of
the PT had a result, namely that the company became in liquidation. As for the
holding of the liquidation period, to give the liquidator the opportunity to
carry out the settlement. Article 143 paragraph (1) of the UUPT emphasizes that
the dissolution of the company does not result in the company losing its legal
entity status until the completion of the liquidation and the liquidator's
liability is accepted by the GMS or the Court (in the case of dissolution due
to the court's determination).
Based on the descriptions mentioned above, it is
necessary to further research the role of curators and liquidators in resolving the problem of bankrupt limited
liability companies.
Based on the formulation of the
problem mentioned above, the purpose of the study is toreview
and analyze the role of the curator in bankruptcy in a limited liability
company. �Meanwhile, the benefits in this study are expected
to add to the treasures of civil law, especially Company Law and Insolvency Law.
RESEARCH
METHOD
The type of research used is normative juridical legal
research or doctrinal legal research, namely legal research that uses secondary
data sources or data obtained through library materials by examining reading
sources relevant to the research theme, including research on legal principles,
legal sources, legal theory, books, laws and regulations that are scientific
theoretical and can analyze the problems discussed,� The approach used in this study is a
conceptual approach and a statutory approach.
The data source used in this
study is secondary data. Secondary Data is data extracted from library reviews
sourced from textbooks, journals, research reports and other written document
materials related to the problem under study.
Secondary data can be divided into 3 (three) parts,
namely:
a.
Primary legal
material is binding legal material in the form of legislation governing Limited
Liability Companies and Insolvency.
b.
Secondary legal
materials are materials that provide explanations or materials that describe
primary legal materials in the form of scientific papers about Limited
Liability Companies and Insolvency.
c.
Tertiary legal
materials are legal materials that provide instructions and explanations to
primary legal materials and secondary legal materials such as legal
dictionaries, English dictionaries and Indonesian dictionaries.
Based on the type and source of data, the techniques used
by researchers use Document studies or literature studies. Document Study is a
data collection technique through library information or literature materials,
namely collecting secondary data related to the problem posed by studying
books, research results and related statutory documents.
This research will use qualitative data analysis
techniques, namely by describing data from the results of statements, views.
Then the collected data is analyzed with stages of editing, coding, reduction,
description. The data obtained will be attempted to edit the research results
with the editing stage then classify the data with research problems with
coding stages, then if there is biased data it will be removed with reduction
stages and describe, decipher, explain the data according to the problem and
elaborate along with secondary data through the description stage.
RESULT
AND DISCUSSION
The Role of Curators in Insolvency in Limited Liability Companies
Process of Managing and Clearing Bankruptcy Assets of
Limited Liability Companies
Management Phase
Management is to
announce bankruptcy efforts, seal bankruptcy assets, record / register
bankruptcy assets, continue the debtor's business, open telegram letters of
bankrupt debtors, transfer bankruptcy assets. depositing bankruptcy property,
entering into peace to guarantee an ongoing case or prevent a case from
arising.
As of the date of the
fall of the bankruptcy declaration judgment, the insolvent debtor is no longer
allowed to manage his assets that have been declared bankrupt.� Furthermore, the implementation of the
management and settlement of the bankruptcy property is handed over to the
curator appointed by the court supervised by a supervisory judge appointed by
the trial judge.
If it turns out that
later the bankruptcy declaration award is overturned either by a judgment of
cassation or review, then any act that has been done by the curator before or
on the date of the curator before receiving notice of the cancellation award,
remains valid and binding for the insolvent debtor to make a summons to the
creditors, register the bills of the creditors, attend the receivables matching
meeting and notify the results of the receivables matching meeting to the
creditors.
Settlement regarding
bankruptcy assets, is the main task of the curator as the authorized party to
manage and settle bankruptcy assets, as mandated in Law Number 37 of 2004
concerning Insolvency and Postponement of Debt Payment Obligations.
An insolvency against
the debtor who is insolved, among others, can be in
the form of compensation, a reciprocal contract that can be continued, the
enactment of a suspension of execution, the enactment of actio pauliana,
the enactment of a general confiscation of the entire property of the debtor, a
lawsuit must be by or against the curator, the forward transaction is terminated, termination of employment of the
employee, the right of retention is not lost.
With the continuation
of the business continuity of the bankrupt debtor (PT), it is possible that
there are benefits that will be obtained including:
1. Can supplement the bankruptcy's estate with the benefits that may be
obtained from the company.
2. There is a possibility that gradually the bankrupt will be able to pay his
debts in full.
3. The possibility of achieving a peace.
This action is
carried out by the curator if there is a possibility to increase the value of
the bankruptcy property. To continue the business of a bankrupt PT, it must be
done based on the approval of the committee of creditors, or if in the
bankruptcy statement decision not appointed by the committee of creditors, then
this is done based on the decision of the Supervisory Judge. The curator also
has the right to open all letters and telegrams addressed to the bankrupt PT.
Furthermore, all letters of complaint and objection relating to the assets of
the bankrupt PT must be shown to the curator.
To continue the
business of a bankrupt PT, the curator must also consider continuing the whole
or part of the bankrupt PT's business for a certain period of time and appoint
a person or several people to carry out the business of the bankrupt PT.
The announcement of
the end of insolvency is announced by the curator through State news and
newspapers after the end of the insolvency, then the curator must give the
calculation of responsibility about the management he has done to the
supervising judge.
Curator
The curator is one of the parties who is quite instrumental in a legal
process, and because of its large role and heavy duty, it is not arbitrary that
people can become the curator's party.
According to Article 1 number 5, what is meant by curator is a heritage
hall or an individual person appointed by the court to deal with the law.
The duties of the curator in carrying out the management and settlement of
bankruptcy assets include:
1. Contains announcements in newspapers and State News of the Republic of
Indonesia.
2. Securing bankruptcy property.
3. Holding creditor meetings
4. Facing all claims against bankruptcy property.
5. Receive registration of bills from creditors.
6. Drawing up a list of creditors.
7. Conduct a dispute hearing if there is a dispute regarding the status and
amount of the creditor's bill.
8. Drawing up an inventory list of bankruptcy estates.
With the declaration
of bankruptcy from the date the judgment of the bankruptcy declaration was
pronounced by the judge, the debtor by law loses the right to control and
manage his property including in the bankruptcy property.
Since the bankruptcy
judgment is handed down, the curator acts as the custodian of the declared
bankrupt and his main task is to manage or settle the
bankruptcy estate. Since it is decided that a debtor is bankrupt by a
commercial court, it brings a legal consequence that the debtor is imposed a
general confiscation of all the assets of the bankrupt debtor and loses his
authority to control and manage his bankruptcy property.
Meanwhile, creditors
experience uncertainty about the legal relationship that exists between
creditors and bankrupt debtors. The curator is one of the parties who plays an
important role in the insolvency process. Because of its large role and heavy
assertiveness, not just anyone can become a curator.
The actions
that must be in the management of bankruptcy assets are:
a. record, vertify the obligations of the bankrupt
debtor. Vertification of the debtor's obligations
requires the thoroughness of the curator. Both the insolvent debtor and the
creditor must be equally heard to be able to determine the status.
b. The data conducts research on the assets of the bankrupt debtor including
the bills owned by the bankrupt debtor so that steps can be taken by the
curator to cash out the bills.
In this case, the
curator must protect the existence of the PT's wealth and try to maintain the
value of the wealth. Any action taken beyond its authority at this stage must
first obtain a judicial proceeding from the supervising judge. In the process
of managing and settling bankruptcy assets by the curator requires maximum
cooperation that is expected to be directly involved outside the curator and in
the spotlight.
The responsibility
imposed on the curator in managing and or clearing bankruptcy assets is quite
heavy, but on the one hand it also does not rule out the possibility of abuse
of these duties and authorities. Therefore clear
regulatory signs are needed about the responsibilities of the curator.
Curator Appointment
According to Article
15 paragraph (1) of UUK-PKPU, it can be seen that the appointment of a curator
is the authority of a commercial court judge, creditors, debtors or authorized
parties (Bapepam, Minister of Finance, prosecutors,
Bank Indonesia) only have the right to submit a proposal for the appointment of
a curator to the commercial court. The Insolvency Law determines the party who
will take care of the debtor's problem, the creditor is the curator who will
carry out the settlement of the bankruptcy property and the settlement of the
legal relationship between the bankrupt debtor and his creditors.
According to Article 13 paragraph (1) of the UUK specifies that in the
judgment of the bankruptcy declaration must be appointed:
1. A supervising judge appointed from a trial judge
2. Curator
Normatively, the
legal rules regarding curators that direct the appointment of the curator
profession can be carried out selectively as well as other rules that direct
the maintenance of the quality of curators so that their implementation is
ideal and realistic.
For the moral
integrity of the curator to remain consistent with his duties and functions,
the function of the supervisory judge on the implementation of the duties and
authority of the curator is something that is important for his control.
Provided that it does not exceed what is required by the Act.
If an application for
insolvency is granted by the commercial court, the administrative and
liquidation arrangements will be forwarded by the curator. The authority to
carry out the management and settlement of bankruptcy estate lies with the
curator. It is the curator who will take care of and clean up the bankruptcy
property.
Curators are
individuals or civil partnerships who have special expertise as necessary to
manage and settle bankruptcy assets and have been registered with the Ministry
of Law and Human Rights. A curator is a party appointed by the court to take
care of the property of the bankrupt debtor. As referred to in UUK-PKPU Article
67 and its implementing regulations. In the old bankruptcy regulation ([1]faillisement verordening) there
is only one curator in insolvency established by the court, namely Balai Harta Warisan
(BHP)
Balai Harta Warisan
(BHP) is an institution originating from the Dutch government that is closely
related to the history of the Dutch entry into Indonesia in 1596. With very
broad power in Indonesia raises the need for its members to take care of the
property left by those whose interests are the heirs.
In 1976 by the
Minister of Justice it was deemed necessary to reshape the BHP which existed
throughout Indonesia, namely: Semarang, Surabaya, Medan for its seat and work
wilaya by the Minister of Justice in accordance with Article 40 of the BHP
instruction in Indonesia Stb 1872 No 166.
Curator
Requirements
Not everyone can be a
curator. According to the old UUK the obligation was specifically carried out
by the BHP who was in charge and responsible for matters regarding the
supervision of custody. Therefore, the requirements and procedures to be able
to become a curator of this by the Insolvency Act are regulated relatively and
strictly. BHP, which is the curator of the government, is a special agency of
the Ministry of Law and Human Rights that acts directly or through its
representative office located in the jurisdiction of the court that has
declared the debtor (PT) bankrupt.
Bertindak as curator as stipulated in
Article 67 of UUK is:
a. Balai Harta
Warisan (BHP)
b. Other curators or private curators
In the article, it is explained about what other curators mean:
a.
an individual or
civil partnership who is domiciled in Indonesia and has the special skills
needed in order to manage and or settle bankruptcy assets.
b.
Has been registered
with the Ministry of Law and Human Rights
Article 70 paragraph
(1) above if connected with Article 15 paragraph (2) which reads: in the event
that a debtor, creditor or authorized party submits an application for a
bankruptcy statement as referred to in Article 2 paragraph (2), paragraph (3),
paragraph (4) or paragraph (5) does not submit a proposal for the appointment
of a curator to the Court, then Balai Harta Warisan is appointed as the
Curator.
Private curators are
the offices of lawyers/ legal consultants who are generally in the form of
civil partnerships, can be curators and have been registered. This provision is
based on the Regulation of the Minister of Justice of the Republic of Indonesia
No M.08.10.05.10 of 1998 concerning procedures and requirements for
registration of curators and administrators. Requirements to be registered as a
curator and administrator
1. Individual
a.
Domiciled in
Indonesia
b. Have a certificate of passing the exam organized by the Association of
Indonesian Curators and Administrators.
2. Civil Partnership
One of the partners
in the fellowship must be domiciled in Indonesia and have a mark of passing the
exam held by the Indonesian Curators and Administrators Association
Submit an application
for registration in writing as a curator and administrator to the Director
General of Law and Legislation by filling out the form provided with attached:
a. Photocopy of valid identity card or passport for individual domicile for
civil partnerships
b. Photocopy of NPWP
c. Photocopy of letter of passing the curator and administrator exam
d. Photocopy of membership certificate of the Indonesian Curators and
Administrators Association (AKPI)
e. Statement letter stating:
1) Willing to open an account at the Bank for every bankruptcy case
2) Never declared bankrupt
3) Never been a member of the board of directors or commissioners who was
found guilty of causing a company to be declared bankrupt.
4) Never served a sentence for committing a criminal offence for which the
penalty was more than 5 years.
Applicants who have
met the requirements for registration as a curator and their management no
later than 3 days from the time all requirements are met. The certificate of
registration as curator and administrator is valid as long as the curator and
administrator are still registered as members as specified in the articles of
association and bylaws of the association of curators and administrators.
Appointment of Curator
In insolvency the
debtor and creditor may propose to the commercial court to appoint a particular
curator who is independent and has no conflict of interest or is independent.
UUK-PKPU does not specify the conflict of interest. Where this is an
implementation of the principle of debt
pooling from insolvency. The fairness of the insolvency proceedings lies in
the interests of both parties of both the insolvent creditor and the insolvent
debtor.
From the date of the
bankruptcy declaration judgment, the insolvent debtor loses his right to manage
and manage the property that includes the
bankruptcy boedel. This affair is carried out by
the curator. It is the curator who carries out the management and settlement of
the insolvency property. Therefore in the judgment of
the declaration of insolvency it is established in advance the curator to be
used. According to the previous law, the curator was Balai
Harta Warisan (BHP), now
the curator is not only BHP, but also other curators, in this case private
curators (Ramadhani, 2009).
The curator makes a
statement of acceptance of the assignment stating and affirming that the
curator has no conflict of interest and includes it in the working paper or
submits it to the Panel of Judges if requested.
Before accepting the
appointment, the proposed curator must honestly consider and ensure
:
a.
Have the necessary
skills
b.
Have sufficient
resources and capacity to carry out appointments effectively, efficiently, and
professionally.
If the curator feels
unable to meet the above requirements, the curator must reject the proposal. If
the curator was not proposed beforehand, but was directly appointed in the
bankruptcy statement, the curator must immediately check whether there is a
conflict of interest or not. The curator makes a statement of the assignee
stating and affirming that he has no conflict of interest and puts it in a
working paper or submits it to the Panel of Judges.
As professionals,
curators and administrators bear the responsibility of maintaining the level of
public trust in the quality of professional services provided by the curatorial
and administrator professions. For this reason, curators and administrators are
required to carefully and carefully articulate their professional expertise by
paying full attention to the Insolvency Law and its implementing regulations
and professional standards.
During carrying out
his duties the curator must have accuracy and equality regarding everything
that is done and in carrying out assignments in the field and in providing
reports on the results of his assignments. Curators and administrators should
critically note that every step taken in the course of carrying out their
assignments has a solid basis in accordance with the Insolvency Law and its
implementing regulations and has taken the precedent of this Professional
Standard, as well as in terms of the presentation of its reports.
Curator
Replacement
According to the provisions of Article 71 paragraph 1 UUK-PKPU allows the
court to when granting proposals for the replacement of curators, appointing
other curators and or appointing additional curators or replacing curators, it
can be done by:
1)
At the request of the
curator himself
2)
At the request of
another curator, if any
3)
On the proposal of
the supervising judge
4)
At the request of the
bankrupt debtor
5)
After listening to
and hearing the curator.
one of the curators
to appoint one of the curators to perform a specific task. Furthermore, in the
formulation of Article 71 paragraph 2 of the UUK-PKPU, it is said that the court
must dismiss or appoint a curator at the request of the concurrent creditor
proposal based on the decision taken on the basis of an affirmative vote of
more than 1/2 (one-second) of the number of concurrent creditors or proxies
present at the meeting and who represent more than 1/2 (one second) of the amount of receivables of concurrent creditors or their
proxies present at the meeting. This means that the judge cannot reject the
application to the extent of the prescribed conditions.
Temporary Curator
In protecting the
interests of creditors as long as the declaration of insolvency has not been
established, a curator may be appointed as an interim curator. It is possible
to prevent the possibility for the debtor to take action against the debtor's
wealth, thereby harming the interests of the creditor.
The curator appointed
as the interim curator to supervise the management of the debtor's business and
supervise payments to creditors. The transfer or collateralization of the
debtor's wealth in the framework of insolvency is carried out by the curator.
An assignment as an interim curator should note that a temporary assignment
that has a different scope than an assignment as a full curator.
In carrying out their
duties, the temporary curator immediately liaises with the debtor or his
management to request data or in the form of information needed, including:
a.
General information
in relation to the place, type and scale of business activities of the debtor.
b.
General information
of the financial state of the debtor.
c.
Information about the
debtor's property, which at least matches the identity of the entire bank
account and other important or material assets owned or controlled by the
debtor.
d.
Other information
necessary in carrying out his duties as a temporary curator.
To facilitate his
assignment, the temporary curator can work or place his assistant in the office
or business location of the debtor. If the application for bankruptcy is
rejected by the court, the duties of the interim curator end and he can account
for it to the debtor.
Actions by curators
The curator must
immediately take the necessary preliminary measures as soon as the debtor is
declared bankrupt. Immediately after being appointed as curator, the curator
contacts the Supervising Judge and prepares the concept of the bankruptcy
announcement to be determined by the Supervising Judge and proposes the
newspaper in which the announcement will be published.
The curator requests
a copy of the bankruptcy declaration and establishes preliminary communication
with the debtor with the aim of securing the insolvent estate and ensuring the
cooperation of the insolvent debtor in insolvency. If the curator encounters a
problem in this regard, then the curator notifies and asks the Supervising
Judge for help.
Some of the actions
that the curator must perform in the preliminary examination are as follows:
1. Identify all bank accounts and other important or material assets owned by
the insolvent debtor;
2. Collect general information in relation to the place, type and scale of
business activities of the debtor;
3. Collect general information in relation to the financial state of the
debtor;
4. Opening a new bank account on behalf of the depositor intends to hold all funds from the account of the
insolvent debtor as intended.
5. Announcing insolvency in the State Gazette of the Republic of Indonesia and
2 (two) newspapers appointed by the Supervisory Judge.
CONCLUSION
The role of the
curator in insolvency in a limited liability company is to begin in the process
of managing and settling bankruptcy assets, starting from the stage of
management, appointment and appointment of qualified curators, settlement of
bankruptcy assets by the curator, so from the date of the bankruptcy statement
decision is pronounced all executors of the management and settlement of
bankruptcy assets are handed over to the curator. After the Limited Company is
declared bankrupt, the curator's task in clearing assets in the Limited Company
is to block the assets of the Limited Company.
The role of the
liquidator in the settlement of assets of a bankrupt limited liability company
is that the liquidator has a position in the settlement of the assets of the
dissolved company, so that it has the rights, obligations and responsibilities
of the liquidator in the settlement of the assets of the dissolved limited
liability company, the liquidator has responsibility if the liquidation has not
ended. The liquidator has a large responsibility from the time of the
dissolution of the Limited Perserooan until the
Limited Perserooan limited legal entity status ends
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