Analisis Keabsahan Penjualan Saham Pemegang Saham yang Dinyatakan Tidak Hadir dan Tidak Diketahui Keberadaannya (Afwezigheid)

Abstract

The status of afwezigheid (absence) creates legal uncertainty because the absent person may possess unmanaged assets, particularly in the form of shares. The Guardian of Absent Persons (BHP) is appointed to manage the assets of such individuals. Shares, as movable property, confer rights such as voting and participation in general meetings of shareholders. In principle, shares can only be transferred by their legal owner (signator). However, complications arise when shares belonging to absent shareholders are transferred by the BHP, raising questions about the legality of such actions and the legal protection afforded to the shareholders. This study employs a normative juridical method with a descriptive approach, utilizing statutory and case-based legal analysis. Data were gathered through literature reviews and interviews, and analyzed qualitatively. The findings conclude that the transfer of shares owned by the absent shareholder of PT Seri Pembangunan Catur Karya Cipta by the BHP is legally valid, even though the transaction was not conducted directly by the legal owner. The BHP acts on the basis of possession (bezit), and represents the absent shareholder in executing shareholder rights. Should the absent shareholder or their heirs reappear or be identified, they may file legal claims if they believe their rights have been violated. The BHP, acting with court approval, may exercise shareholder rights without owner approval and comply with share transfer permissions under the Company Law to ensure the protection of the shareholder. Legal protection for the absent shareholder lies in the ability to file a lawsuit. This case highlights the need for the government to update and expand regulations concerning afwezigheid to ensure legal certainty and adequate protection.

Keywords: Afwezigheid, Shares, Legality, Sale