President the authority to exercise government power to achieve the goals of the state, namely

the welfare of the people. This provision is further detailed in Article 33 which forms the basis

economic growth in the following year if they can synergize in managing the business fields

of each SOE (Juliani, 2016). BUMN assets are also estimated to be larger through the asset

revaluation process (Kompas, 2016). SOEs continue to work on many projects. As an

illustration, the total value of BUMN projects with a period of 1-3 years by the end of 2015

reached Rp 795.9 trillion. Realization until the end of 2015 amounted to Rp 248.5 trillion. In

2016, it is projected that there are 62 strategic projects carried out by SOEs, with a value of

approximately IDR 347.2 trillion (Juliani, 2016).

the interests and objectives of the SOEs, and represents SOEs both inside and outside the court.

court because they are suspected/accused of having taken actions that harm state finances as a

result of their actions in managing/managing the SOEs they lead. The last case is the case of

RJ Lino. Richard Joost Lino (RJ Lino) is the president director of the Indonesian Port

Corporation II (PT Pelindo II (Persero)) who was officially dismissed from his position by the

shareholders on December 23, 2015, after the KPK named Lino a suspect in the alleged

corruption case in the procurement of quay container cranes (QCC) in 2010.

lead and the responsibilities and risks they carry in managing state assets, research will be

conducted by examining the issues: “Criminal Liability of Indonesia’s State-Owned Enterprise

aims and objectives of the company and represents the company, both inside and outside the

company. or outside the court following the provisions of the articles of association. It is

reaffirmed in Article 92 paragraphs (1) and (2) that the Board of Directors carries out

management of the Company for the benefit of the company and in accordance with the aims

and objectives of the company and the Board of Directors are authorized to carry out

management in accordance with policies deemed appropriate, within the limits specified in the

law. this law and/or the articles of association.

Law), it is stated that: 1) The management of BUMN is carried out by the Board of Directors;

2) The Board of Directors is fully responsible for the management of the BUMN for the

management of the Company. The management of the company is carried out by the Board of

Directors in accordance with its policies in good faith and responsibility but must remain within

the limits determined by the law and the company's articles of association. The management of

the company is the responsibility of the Board of Directors itself, therefore the Board of

Directors is also responsible for the company's losses caused by errors or negligence in the

duties of the Board of Directors Ministry of State-Owned Enterprises, 2007). Members of the

Board of Directors also personally bear the loss, namely in the case of the Board of Directors

of 2 or more persons whose responsibilities apply jointly and severally. The members of the

Board of Directors can be released from the responsibility for state losses if they can prove that

the loss was not due to error or negligence, and has carried out management carefully and in

Number: PER-01/MBU/2011 dated August 1, 2011, concerning the Implementation of Good

Corporate Governance, that members of the board of directors are prohibited from taking

personal advantage either directly or indirectly from BUMN activities other than legitimate

income.

BUMN Law, are business entities whose entire or most of the capital is owned by the state

that the wealth of SOEs does not become state assets, the article "separated state wealth" in

SOEs is only in the form of shares or in other words the state only has shares in state-owned

companies (FNH, 2012).

Number 17 of 2003 concerning State Finance, it is stated that state finances are all state rights

and obligations that can be valued in money, as well as everything in the form of money or

money. in the form of goods that can be used as state property in connection with the

implementation of these rights and obligations. Then it is emphasized in Article 2 letter g of

the State Finance Law, state finances include state assets/ regional assets managed by

themselves or by other parties in the form of money, securities, receivables, goods, and other

the terminology of state finances. The General Elucidation of the Anti-Corruption Law states

that state finances are all state assets in any form, separated or not separated, including all parts

of state assets and all rights and obligations arising from:

Number 1 of 2004 concerning the State Treasury, which states that state/regional losses are a

shortage of money, securities, and goods, which are real and definite in amount as a result of

unlawful acts either intentionally or negligently. This formulation is also regulated in Article 1

point 15 of Law Number 15 of 2006 concerning the Indonesian Audit Board (Badan Pemeriksa

Keuangan).

for state financial losses (Adami, 2018), namely:

research as the author has alluded to above. Normative Juridical Research Method is a legal

research library conducted by examining library materials or secondary data (Sunggono, 2003).

The author uses the Deductive Thinking Method, which is a way of thinking that is used when

concluding from something that is general and has been proven true and then the conclusion is

intended for something specific (Sedarmayanti & Hidayat, 2002).

qualitative research is a research method that refers to the legal norms and provisions contained

in the Legislation (Soekanto & Mahmudhi, 2003).

have strategic functions in relation concerning the administration of the state in accordance

for bringing SOEs as agents of development by using the Business Judgment Rules (BJR)

paradigm and the principles of Good Corporate Governance (GCG) (Soekanto & Mahmudhi,

2003).

01/MBU/2011 dated August 1, 2011, concerning the Implementation of Good Corporate

Governance in BUMN as amended by the Decree of the Minister of State for BUMN Number:

PER-09/MBU /2012, Good Corporate Governance, hereinafter referred to as GCG, are the

BUMN Law, and in its explanation, it is said that the Board of Directors as an organ of BUMN

assigned to manage is subject to all regulations that apply to BUMN and still adhere to the

application of GCG principles.

of the Minister of BUMN Number: PER-01/MBU/2011 dated August 1, 2011, concerning the

Implementation of Good Corporate Governance in BUMN, namely to:

between the parties. Following the principle of fiduciary duty, a director as the beneficiary of

the company may not act beyond the limits of his authority, as stipulated in the company's

articles of association. If a director takes action outside and or following the limits of his

authority that have been given to him, he will personally be legally responsible, not the

company as the power of attorney.

explicitly and related to the business judgment rule doctrine. However, if examined carefully,

the business judgment rule doctrine has been accommodated in the provisions of Article 92 and

Article 97 of the Indonesian Limited Liability Company Law.

accommodated the business judgment rule doctrine against Members of the Board of

97 paragraph (2) of the Limited Liability Company Law contains the 'soul' and 'spirit' of the

business judgment rule doctrine. Directors cannot be blamed for their decisions as long as the

decisions do not contain elements of personal interest, are decided based on information they

believe, under appropriate circumstances and rationally, and are the best decisions for the

company.

violating the duty of care principles. First, have information about the problem to be decided

and believe that the information is correct and can be accounted for. Second, decide in good

faith and have no interest in that decision. Third, have a rational basis for believing that the

Organizers that are Clean and Free from Corruption, Collusion, and Nepotism, it is emphasized

that the Directors, Commissioners, and other structural officials in BUMN and BUMD are state

administrators. They have a strategic function in the administration of the state and are

responsible for guiding SOEs as agents of development with the principles of good corporate

governance. The accountability of the Board of Directors can be seen in compliance with the

laws and regulations and the principles of a healthy corporation. If a loss occurs, whether

intentionally or negligently against the law, it can be interpreted as a state financial loss as long

the State Treasury;

Government Administration; and

Government Administration, officials who make administrative errors and cause state financial

losses due to an element of abuse of authority must return the losses. Referring to the

Regulation of the Supreme Court Number 4 of 2015 concerning Guidelines for Proceeding in

the Assessment of Elements of Abuse of Authority, the Administrative Court has the authority

be subject to administrative and/or criminal sanctions. Furthermore, in paragraph (2), it is

emphasized that the criminal decision does not release the relevant Board of Directors from

claims for compensation (Juliani, 2016).

error or omission resulting in a loss to the Company is Article 1365 Indonesian Civil Code

(Burgerlijk Wetboek (BW)) or better known as a lawsuit for unlawful acts (Onrechtmatige

daad). In addition, in the provisions of Article 1366 BW, it is determined that every person is

responsible not only for losses caused by his actions but also those caused by negligence or

carelessness. In this case, the Board of Directors of BUMN Persero as the fiduciary duty holder

the Law on Criminal Law''. This provision contains the principle that civil liability

(Civielrechtelijke aansprakelijkheid) does not eliminate or reduce criminal liability for errors

and omissions committed by the Board of Directors and/or the Board of Commissioners if it is

proven that the error or omission contains elements of a criminal act.

of Directors and/or the Board of Commissioners can be prosecuted simultaneously, both civilly

and criminally. For example, if a member of the Board of Directors or a member of the Board

of Commissioners embezzles money or assets of the Company, both civil and criminal liability

are attached to the act. Civil liability can be sued based on Article 1365 BW as a violation of

the law which causes the Company to suffer losses due to the embezzlement act. The criminal

determines that the act is a criminal offense. This relates to the principle of legality adopted in

Indonesian criminal law as stipulated in Article 1 paragraph (1) of the Indonesian Penal Code.

to state financial inclusion in State-Owned Enterprises. This is because SOEs are the legal

entity that is not wholly-owned by the state. Because there are private equity investments whose

legal arrangements and regulations are subject to the provisions of the Company Law and the

BUMN Law, so that state financial losses in BUMN that are carried out by the Board of

Directors as a result of their policies cannot be imposed as acts of corruption as regulated in

Article 2 paragraph (1) and Article 3 of the Anti-Corruption Law, except if someone

cause losses to the Company should not necessarily be carried out based on criminal acts of

corruption, but must meet the elements as described above cumulatively, not only emphasizing

the elements of state financial losses or the economy. only country. In addition, the relevant

Board of Directors may be criminally prosecuted, for example on charges of embezzlement,

falsification of financial data or reports, and criminal acts in the banking sector (Ginting, 2007).

does not include state assets or finances as referred to in the State Finance Law.

for the management of BUMN and represents BUMN both inside and outside the court. In the

management of a Company, profits or losses may arise for the Company. However, losses that

occur in a BUMN Persero cannot be considered as state financial losses, because in the

management of the Company there are always business risks that can bring losses to the

Company. Therefore, losses arising from a business transaction carried out by BUMN Persero

do not automatically become state losses which lead to criminal acts of corruption, where what

can be referred to as state losses is if the act that causes losses to the Company is carried out

against the law, namely the non-execution of fiduciary duty by the Board of Directors which

suggestions, namely that it is necessary to make changes and synchronization of laws and

regulations on the definition of state finances and state losses, which until now are still

contradictory and overlapping between one law and the other. other statutory provisions. This

needs to be done to provide legal certainty (Rechtszekerheid) for SOE management so that they

do not hesitate in making business decisions and are more willing to take risks to support the

development and progress of the Company in achieving its goals; and that. The application of

the principles of good corporate governance must be prioritized in the management of SOEs to

improve company performance and maintain public trust and to achieve company goals and

objectives in ways with integrity. It is hoped that there will no longer be deviations made by