Legal entities, usually corporations, have been recognized as legal subjects with rights and obligations. This shows that corporations with legal entities have an equal position as humans in carrying out legal actions. However, some legal actions may cause harmful effects such as losses or even be categorized as a crime. Law in Indonesia has regulated criminal liability in corporations, making management responsible for the crimes committed. However, a Business Judgment Rule doctrine makes management unable to be held accountable for decisions taken. To find out the application of these two concepts in Indonesia, the Business Law Studies Faculty of Law, 51动漫 (BLS FH UNAIR), again held a webinar entitled “Corporate Accountability Vs. Business Judgment Rules”. The activity, had online on Saturday, December 3, 2022, brought together two legal experts to share material from two scientific perspectives.
The opportunity to deliver the first material was given to Dr. Maradona, S.H., LL.M. as an expert on corporate crime. He started by explaining the difference between occupational crime and corporate crime. Occupational crime is a crime committed by an individual for himself within the scope of his work or a crime committed by a worker against his boss. Meanwhile, corporate crime is a crime committed by workers for the company’s benefit or a crime committed by the company (also known as corporate crime). “We know that there is a social context theory to measure an act carried out by an individual alone or there are nuances of an act being carried out by a corporation or legal entity as a legal conscience,” he explained.
He then continued that criminal law was originally only designed for humans. However, corporate crime exists to balance positions. This is based on the idea that corporations can be held accountable because corporations are “real entities”. Corporate actions can be separated from natural human activities within the corporation (corporate policy). In addition, there are main requirements that must be considered in corporate criminal liability, namely, ‘to benefit the corporation’ and ‘acts carried out within the scope of the corporation’.
The next opportunity was given to Agus Widyantoro, S.H., M.H. as a business law expert. He explained that the Business Judgment Rules is a concept in which the company’s directors cannot be held legally responsible for their decisions even if those decisions cause harm to the company. According to him, the business judgment rule doctrine can serve as a shield or shield for the board of directors as long as the decisions are made in good faith, with the proper purpose and method, a rational basis, and prudence. However, directors cannot protect themselves under the principles of the business judgment rule if the decisions they make contain elements of fraud, conflict of interest, illegality, and gross negligence. The focus of business judgment rules emphasizes accountability in the civil realm.
This principle arises as a result of the implementation of fiduciary duties by the directors or the principle of duty of skill and care. The normalization of business judgment rules principles is contained in Article 97, paragraphs (2) and (5) of Law Number 40 of 2007. According to him, there are at least nine conditions for applying the principles of business judgment rules. Namely, policies deemed appropriate, losses occur not due to mistakes or negligence, and have conducted management in good faith, prudence, under the aims and objectives of the company, full of responsibility, under decency, under propriety, and the principles of good corporate governance. However, Article 155 of Law Number 40 of 2007 states that if the directors or the board of commissioners are guilty or negligent in carrying out the company’s management, they are still considered to fulfill the criminal element, and criminal liability can be imposed.
