The General Meeting of Shareholders or GMS (Rapat Umum Pemegang Saham/RUPS)
The General Meeting of Shareholders or GMS (Rapat Umum Pemegang Saham/RUPS) is a Company Organ.
Based on Article 1 number 2 of Indonesia’s Law Number 40 Year 2007 regarding Limited Company, the Company has three organs consisting of:
- GMS
- Directors; And
- Board of Commissioners.
Furthermore, the existence of the GMS as an organ of the Company is reaffirmed in article 1 point 4 which states, the GMS is an organ of the Company. Thus, according to law, the GMS is a Company organ that cannot be separated from the Company. It is through the GMS that shareholders as owners (eigenaar) of the Company exercise control over the management carried out by the board of directors as well as over the assets and management policies carried out by the Company’s management.
Authority of the GMS
In general, according to Article 1 point 4, the GMS as an organ of the Company, has authority that is not given to the board of Directors or Board of Commissioners, but within the limits determined in this law and/or the Company’s Articles of Association.
Then the authority of the GMS is stated again in Article 75 paragraph (1) which reads: The GMS has authority that is not given to the Board of Directors or the Board of Commissioners within the limits specified in this law and/or the articles of association.
So in general, any authority that is not given to the Board of Directors and/or Board of Commissioners, becomes the authority of the GMS. Therefore, it can be said that the GMS is the highest organ of the Company. However, this is not exactly the case, because basically the three organs of the Company are parallel and side by side in accordance with the separation of powers regulated in the law and articles of association. Thus, it cannot be said that the GMS is superior to the Board of Directors either the Board of Commissioners. Each has a position and authority according to the functions and responsibilities they have.
If described, the main authority of the GMS is in accordance with the 2007 Limited Liability Company of Indonesia’s Law, including the following:
- Declare to accept or take over all rights and obligations arising from legal actions carried out by the founder or his proxies (Article 13 paragraph 1);
- Approve legal actions on behalf of the Company carried out by all members of the Board of Directors, all members of the Board of Commissioners together with the founders provided that all shareholders are present at the GMS, and all shareholders approve them at the GMS (Article 14 paragraph 4);
- Changes to the Articles of Association shall be determined by the GMS (Article 19 paragraph 1);
- Give approval for the repurchase or further transfer of shares issued by the Company (Article 38 paragraph 1);
- Hand over authority to the Board of Commissioners to approve the implementation of GMS Decisions regarding the repurchase or further transfer of shares issued by the Company (Article 39 paragraph 1);
- Approve the increase in Company capital (Article 41 paragraph 1);
- Approve a reduction in the Company’s capital (Article 44 paragraph 1);
- Approve the annual work plan if the Articles of Association determine so (Article 64 paragraph 1 jo. paragraph 3);
- Approving the annual report and ratifying the financial report and supervisory duties report of the Board of Commissioners (Article 69 paragraph 1);
- Decide on the use of net profit, including determining the amount of allowance for statutory reserves and other reserves (Article 71 paragraph 1);
- Determine the division of duties and management of the Company between members of the Board of Directors (Article 92 paragraph 5);
- Appoint members of the Board of Directors (Article 94 paragraph 1);
- Determine the amount of salaries and allowances for members of the Board of Directors (Article 96 paragraph 1);
- Appoint another party to represent the Company if all members of the Board of Directors or Board of Commissioners have a conflict of interest with the Company (Article 99 paragraph 2 letter c);
- Give approval to the Board of Directors to:
- Transfer the Company’s assets, or
- Serve as collateral for debts of the Company’s assets, This approval is required if more than 50% (fifty percent) of the Company’s net assets are in 1 (one) or more transactions, whether related to each other or not (Article 102 paragraph 1);
- Give approval to the Board of Directors to submit a bankruptcy petition for the Company itself to the Commercial Court (Article 104 paragraph 1);
- Dismiss members of the Board of Directors (Article 105 paragraph 2);
- Strengthen the decision to temporarily dismiss which done by the members of the Board of Commissioners against members of the Board of Directors (Article 106 paragraph 7);
- Appoint members of the Board of Commissioners (Article 111 paragraph 1);
- Determine the amount of salary or honorarium and allowances for members of the Board of Commissioners (Article 113);
- Appoint Independent Commissioners (Article 120 paragraph 2);
- Give approval to the Merger Plan (Article 223 paragraph 3);
- Give approval regarding Merger, Consolidation, Takeover or Separation (Article 127 paragraph 1);
- Give a decision on the dissolution of the Company (Article 142 paragraph 1 letter a);
- Accept the liquidator’s responsibility for completing the liquidation (Article 143 paragraph 1).
For more information, please consult your problem with us.
Source:
Yahya Harahap, 2016, Hukum Perseroan Terbatas, Sinar Grafika, Jakarta.
Dharma Na Gara
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