Penerapan Prinsip Business Judgment Rule terhadap Pertanggungjawaban Perdata Direksi Perseroan (Analisis Putusan No.915 K/Pdt/2017 dan No.83/Pdt.G/2016/PN.Sby)

Abstract

Director plays a very necessary role to improve the company’s profit related to the company purpose and objective. As a company organ, a director might conduct decisions which is not in accordance with its task and function. It could be qualified as a violation which is possibly happen as a result of intentionality and/or negligence. It subsequently would lead the director to personal liability. The boundaries of fiduciary duty conduct by the director is subject to the Good Corporate Governance principal in director defense as well as ruled in Law Number 40 Year 2007 of Limited Liability Company. The type of research used is normative juridical law research with a regulatory approach that seeks to describe, study, analyze, and explain. The data used is secondary data collected with literature study techniques, study of laws and regulations, study of court rulings and legal comparisons. Business Judgment Rule is one of the legal doctrines of the company which in its implementation is intended to protect the Board of Directors in making decisions. The Board of Directors in making decisions must be accompanied by good faith, there is no element of personal interest, decided based on reliable information, by the right and rational circumstances, the decision is best for the company, there is no element of fraud, conflict of interest, unlawful conduct or there is a concept of intentional error. The legal arrangement of Business Judgment Rule in Indonesia is contained in Article 92 paragraphs 1 and 2 and Article 97 paragraph 5 of the Law Number 40 of Limited Liability Company. The application of Business Judgment Rule to the Supreme Court of Indonesian Repubic Decision No. 915K / Pdt / 2017 against the Director of PT Pegadaian is unacceptable because he did not implement the Principles of Good Corporate Governance to his employees so that the Director of PT Pegadaian was obliged to give their employees right as the consequence of the unemployment and to perform civil liability by indemnifying their employees. The District Court of Surabaya Decision No. 83/Pdt.G/2016/PN. Sby became a legitimacy to the application of the Business Judgment Rule against the Director of PT Santos Sanjaya, where the application of this principle was also unaccepted by the minority shareholders because the Director violated the principle of trust (fiduciary duty) given to him and did not act with caution.