Meiliaana Anggelia (0512012008)

Company Law
1




Company Law
First Paper Assignment













Topic :
Dissolution and Liquidation of Maatschap


Liquidation and Dissolution of Maatschaap

There are 2 types of company in Indonesia, first is Corporate Alliance which is
legal entity and second Corporate Alliance which is Not A Legal Entity. Company
Alliance which is Not Legal entity is a company privately held company founded and
owned by some entrepreneurs are working together in the form of civil, one of the
example is Civil partnership or as known as Maatschap.

Maatschap generally is an agreement between two or more people to try to work
together to find the benefits to be achieved by depositing both parties for joint venture
property. Based on Angela Schneeman, partnership means association of two or more
people conduct joint ownership of a business for profit.

In Indonesia Maatschap or civil partnership is set in Article 1618 s.d. 1652 of the
Civil Code, Book III, Chapter VIII of the Civil Union (Burgerlijk Maatschap).
Maatschap , or civil partnership , a form of agreement set out in the Civil Code
Article 1618 Civil Code ( " Civil Code " ) . Maatschap is " An agreement by which
two or more persons bind themselves to put something in communion , with the intent
to share the resulting profits . "

From the formulation of such Indonesian civil code article, can be interpreted that
maatschap has the four elements. First is an agreement, Second engagement between
two or more people, Third influx something into the union (inbreng).
Inbreng can be money, goods (material / immaterial), or power (Article 1619
Civil Code). And the last isorder to share the benefits. Civil partnership who act out
against third parties openly and continuously for a profit turn into Special Type of
civil partnership (Article 1623 Civil Code).

Dissolution and liquidation is a two-fold process that takes place when a business
is shut down permanently. The idea is to not only dispose of any inventory and assets
owned by the company, but also to terminate the recognition and standing of the
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Company Law
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business as a legal entity. Laws regarding the processes required to achieve this goal
vary somewhat from one nation to another, making it necessary to work with legal
counsel to make sure each step is done in order. This includes making sure the
strategies employed are in compliance with the regulations that govern the operation
of businesses within jurisdiction in which the business was incorporated.
Liquidation is the dissolution include payment obligations to creditors and the
distribution of the remaining assets to the holders of allies. The main purpose of the
liquidation itself is to perform the maintenance and settlement of the property of the
dissolved company.
For the most part, the first component in the dissolution and liquidation process
focuses on the orderly divestment of all assets of the business. The idea is to sell off
the assets and settle any outstanding debts owed by the company.
In nations that require divestment of assets first, the last stage of the dissolution
and liquidation process focuses on officially ending the existence of the company as a
legal entity. Here, the task requires providing the necessary paperwork to
governmental agencies that oversee the incorporation and official recognition of
business enterprises within the area where the company was established. Proof that
the entity has settled all known obligations and been divested of all assets is often
required before the company is considered legally and permanently dissolved.

In Indonesia, the main purpose of liquidation is to perform the maintenance and
settlement of the bankruptcy estate. Liquidation process also refers to Government
Regulation No.. 1 of 1998 on the Amendment of the Law on Bankruptcy.
The rules in distributing assets in liquidation fellowship graded in order of
priority:
I. amounts owed to the state.
II. the amount borrowed from a lender who is not an ally.
III. the amount borrowed from allies in addition to capital and earnings.
IV. the amount that should be given to the appropriate ownership allies.
In general liquidation of partnership ( partnership liquidation ) involves things -
the following :
A. Converting noncash assets into cash
B. Recognizes gains and losses as well as liquidating expenses incurred
during the period liquidation
C. Completed all obligations
D. Distribute cash to the partners in accordance with their capital account
balances end
General description of the liquidation process assumes that things the following :
Partnership is solvent ( in example: assets exceed liabilities
communion fellowship )
All allies have equity in net assets of fellowship
No outstanding loan balance to any existing allies
All assets converted to cash before cash is distributed to the partners
if the assumption - the assumption is negligible , the liquidation process will
become increasingly complex , therefore , this chapter will start with a simple
liquidation over the alliance continues to solvent and insolvent liquidation fellowship
.
Regarding dissolution maatschap, according to Article 1646-1652 of the Civil
Code and Article 31-35 Commercial code there are 7factor affected this, which is :
Elapse of time is agreed
Termination by either party
Termination based on a valid reason
completion of works
The destruction of the object which is the object fellowship.
The death of one ally
The existence of a guardianship or bankruptcy alliance

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Company Law
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Section 1646 is not to be limitedly . Dissolution , broken , expired . Ontbinding and
Vereffening .

-Ontbinding : broke , broke in a de jure sense , in keeping with the provisions of the
Act , the agreement .

-Vereffening : verification , settlement , liquidation . To determine the completion of
the rights and obligations of the company .

For the benefit Vereffening Legally , companies are still considered to exist , exist so
far For the benefit of the liquidation . After completion of the liquidation , if the debt
is paid sdh , sdh receivables billed and there are still remaining , it will be divided
according to the agreement of all members . Once everything is completed , then the
Partnership is really "dissolved " either de jure or de facto .

There are existence of liquidation process consists of 3 :
1 . Liquidation directly / simultaneously , carried out directly after the entire asset
is realized . For direct liquidation, the terms need to develop a schedule of cash
payments if it fulfills at least one of the following requirements :
when there is a deficit allies
No cash when arrested
if there is still a balance of non- cash assets
2 . Periodic gradual liquidation, periodically conducted periodically after the
realization of noncash assets and following the liquidation procedure is repeated until
all the estimates do not balance .
3 . Gradual liquidation of the cash program, conducted periodically liquidation
process in which a list compiled liquidation will equal the periodic gradual liquidation
but need to make a cash program before liquidation compiled list , which shows how
the cash is distributed to the partners in the future . Besides, the schedule of cash
payments in this way is also somewhat different from the periodic gradual liquidation

Simple partnership liquidation is a simple communion fellowship conversion of
all assets into cash with a cash distribution to the partners in a final resolution to the
problems fellowship .

For civil partnership or maatschap established for an unspecified time, the
dissolution apply Article 1649 Civil Code , by the will of a few or an ally .
Dissolution is done with a notice of termination to all other allies. This dissolution
must be done in good faith , and not done if there is no time given .

In the Civil Code Article 1950 states that notice of dissolution is deemed not in
good faith , if an ally to stop its alliance with the intention of taking advantage for
themselves , while the gains had previously been planned to be enjoyed jointly by the
allies . So , there is an intention to benefit themselves , taking advantage that should
be enjoyed jointly by the allies .

What is to be done with it does not give you the time according to paragraph 2 of
Article 1650 of the Civil Code means that is if the partnership items are no longer
there in its entirety , while the partnership interests demand that its dissolution was
postponed .

In article 1266 Civil Code says that the condition is considered null and always
included in the agreements are leaded and forth , when one party does not fulfill its
obligations . In such cases , the agreement is not null and void , but the cancellation
must be requested to the judge . This request should also be made , although the terms
of the non-fulfillment of the obligations void stated in the agreement . If it does not
void the terms stated in the agreement , the judge at the request of the plaintiff is
authorized to , according to circumstances , provide a period of time to a defendant to
fulfill the obligation , provided it is not past one month .

What is called a reciprocal agreement. Based on J. Satria "The Law of
Engagement , Engagement The Birth Of Agreement " book stated that the reciprocal
agreement is an agreement that raises the obligations ( and hence also the right ) to
both parties , and the rights and obligations that have relationships with each other .

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Maatschap , is a form of mutual agreement . He raises the obligations between
the side . Thus , Article 1266 of the Civil Code should be applied to invoke
cancellation maatschap agreement on the basis of default .

However , as described above , maatschap termination provided for in article
1646 Civil Code . Given that this particular arrangement , the Civil Code Article 1266
ruled , in accordance with the principle of lex speciali derogate lex generali.

In addition , if the cancellation of the agreement allowed for use on maatschap ,
this will certainly causes trouble , because the retroactive cancellation until the second
birth to the agreement .

Prof. Subekti S.H. in his book "The Law Agreement " states that in the event the
agreement is canceled, then the two sides brought to the state before the agreement
eliminated. All the rights and obligations arising from the maatschap, be abolished .
What is what has been accepted by the parties must be returned . This certainly poses
difficulties, especially if the maatschap already have a legal relationship with the
other party . On this basis , in our opinion , Article 1266 Civil Code should not be
used in maatschap . Thus the dissolution maatschap refers to the provisions stipulated
in Article 1646 , Article 1647 and Article 1648 Civil Code .

Regarding the dissolution of maatschap, When maatschap disperse, then the
assets will be distributed to members maatschap maatschap based on prior
agreements, net debt to a third party. If there is a debt remain, back on the
characteristics maatschap itself, then the debt will be shared (jointly and severally) by
the allies under the agreement that had been made previously. "Liquidate" usually
may only be carried out once a little old after maastchap discontinued.

Last stage in dissolution process is usually Settlement. For the benefit termination
settlement occurs enterprise de jure and de facto; Settlement executed on behalf of the
partnership that has been dissolved (Art. 32 commercial code); Settlement can not
exist, if all debts have been paid and that the profits have been divided before the
partnership dissolved, in line with the agreement.

Settlement does not need to exist, if the agreement within stipulated otherwise
agree or ally other means or other action (Molengraaff). According to Art. 33 and 34
Commercial code, after the alliance broke up, cash alliances still exist

Fellowship of the settlement period can be declared bankrupt by the Bankruptcy
Act; During the settlement, the fellowship can still sue and be sued (Art.32 paragraph
(2) commercial code)

The task of the completion of the arrangement submitted to the allies, in line with
the principle of freedom of action.
According to article 32 of the commercial code set:
1. First of all one has to look at the deed of establishment. If there are no
provisions here, then:
2. Allied officials who shall make settlement;
3. Can be specified in the deed of a person or persons who may act as an ally
instead of resolver;
4. The allies together, with majority vote, may appoint an ally who is not allied
officials to commit settlement;
5. If the majority votes unsuccessfully, allies can ask the judge to determine who
which became resolver.

Settlement may be more than one . How they should act depending on the deed
of incorporation governs how. If not exist, then Article1637 Civil Code applies : Each
resolver can act on their own , as long as each one should be fully responsible for all
actions and measures it intended to mount the implementation of the settlement .

Ideally act together - same for the coordination of the liquidation. The
relationship between the allies resolver authorization is a legal relationship. Resolver
shall be responsible to the allies, including the effect of mistakes ; The resolver is
only responsible for an area specified in the agreement of appointment ( Art.1804
Civil Code )

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Everything that made resolver engagement means an engagement at the expense
of fellowship, within the limits of his power. Allies can be sued to fulfill the
engagement - engagement with the fellowship. The new settlement is completed when
bill to P3 is paid off everything, resolver paid honoraria, etc. If there is a remainder,
the right allies.