Tanggung Jawab Direktur dalam Hal Terjadinya Kepailitan Perseroan Terbatas

Abstract

Basicly, the director's liability in the limited company which is state to be bankrupt is the same as a normal limited company. It is been a general rules that as long as there is a good faith, the company's director that is bankrupt, normally could not be asked financially about the liability. In a matter that a company is declared to be bankrupt and the bankruptcy happens because of the director's mistake and negligence, therefore the Code of Limited Company governs spesifically about the director's liability that has done a mistake or negligence. This research is the normative law research and the comparative law, this research estabilished to know the law substance that involved the norm preparation or the regularity behavior that includes of law norms that found in the court decision that included of such problems of director's liability in a matter of limited company's bankruptcy from United States of Amerika that believed about common law system within the Code of Limited Company Number 1 year 1995 and Code of Bankruptcy Number 4 year 1998, that will be analyzed quantitativelly. The characteristic of this research is descriptive characteristically. Not all bankruptcy will bring the director to be liable which is discussed in Article 90 (2) and Article 85 (2) Code of Limited Company, but only the director's mistake or as reciprocal by gross negligence, fraud, conflict of interest or illegality which are possible to ask the director's liability personally. The conscious action by the director is not automatically to fullfill the obligation which is due and causing a bankruptcy petition against the company and finally the company has a bankruptcy declaration based on a court decision clearly considered as a violation to business judgement rule. On the fiduciary duty concept consist of duty of care and skill or duty of loyalty and good faith, and a violation to it would cause a breach of duty from the director, so it will be drag into personal liability to the disbenefit of a company, stockholders and even the parties who have interests with the company. Different from the fiduciary duty concepts, in the business judgement rule, the director is asked for his or her liability personally to the company's bankrupt if he or she is proved and hase done mistakes or done gross negligence, fraud, conflict of interest or illegality.