Studi Perbandingan Hukum Indonesia Dan Amerika Serikat Terkait Disgorgement Fund Untuk Pemulihan Kerugian Investor Dalam Insider Trading

Abstract

Despite the rapid growth of Indonesia’s capital market, it continues to face various legal challenges, such as insider trading and illegal investment management, which have not been optimally addressed and have caused losses to investors. In response, the Financial Services Authority (OJK) adopted the concept of disgorgement from the United States—which has effectively implemented it in insider trading cases since the 1970s—through POJK No. 65/POJK.04/2020, aimed at returning unlawful gains to harmed investors. This study examines the urgency of regulating Disgorgement Funds in the capital market, compares the legal frameworks of Disgorgement Funds in Indonesia and the United States, and analyzes their application in insider trading cases. The method used in the research is a normative legal research method, which focuses on the collection of secondary data derived from primary, secondary, and tertiary legal materials through a literature study, analyzed using a comparative and statutory approach. This study concludes, first, that the regulation of Disgorgement and Disgorgement Funds under POJK No. 65/POJK/2020 is both urgent and essential—not only to punish offenders but also to restore the losses suffered by victims. Second, the comparison between the United States and Indonesia reveals both similarities and differences in the concept of disgorgement funds, the regulatory authorities involved, legal foundations, calculation mechanisms, distribution methods, and the scope of disgorgement as a form of investor protection. Third, in the United States, disgorgement funds in insider trading cases are generally transferred to the U.S. Treasury and have not been directly distributed to investors, in contrast to other types of violations. Meanwhile, Indonesia has not yet established any precedent for applying disgorgement in capital market violations