Legal Literacy - This article explains about Nominee Arrangement in Cooperative Asset Ownership
Cooperative Business Entity
A cooperative is a form of legal entity as its existence is recognized through Law No. 25/1992 concerning Cooperatives as last amended by Law No. 6/2023 concerning the Stipulation of PERPPU No. 2 of 2022 concerning Job Creation into Law (Cooperative Law). In business activities, the Cooperative business entity is often underestimated by business actors. This is because business actors are more inclined to choose the Limited Liability Company (PT) business entity over Cooperatives.
One of the consequences of recognizing a Cooperative as a legal entity is that it has its own assets (wealth) which means that these assets are separate from the assets of the founders or administrators or members. In line with the statement made by the author, juridically this is in accordance with the formulation of Article 1 number 26 of the Regulation of the Minister of Cooperatives and Small and Medium Enterprises No. 8 of 2023 concerning Savings and Loans by Cooperatives (PMKUKM No. 8/2023) which states that, “assets is property which owned and managed Cooperative to carry out business operations in the form of current and/or fixed assets."
The phrase “fixed assets” in Article a quo is interpreted to mean that fixed assets are also defined as assets in the form of immovable property that, according to their nature and form, do not change. One example of immovable property is land. The consideration is that this is in accordance with the basic rules applicable in the Roman legal system, which has established land as immovable property (Herlien Budiono, 2016: 228).
Based on the provisions of Article 22 paragraph (7) letter a of PMKUKM No. 8/2023 jo. SE Deputy for Cooperatives No. 06/2022 concerning the Obligation to Record Cooperative Assets has imposed an obligation on Cooperatives to record assets owned by the Cooperative in the name of the Cooperative legal entity. Judging from the nature of the norm, the rule on the obligation to record Cooperative assets is categorized as an imperative regulation (dwingend recht).
The nature of the norm contained in Article 22 paragraph (7) letter a of PMKUKM a quo is in line with the character dwingend recht in Book II on Property Law in the BW, which is closed. This means that the provisions regarding the obligation to record Cooperative assets must not be deviated from and/or violated. In addition, Article 109 of the PMKUKM a quo regulates that if a Cooperative violates the provisions a quo Administrative Sanctions shall be imposed.
Nominee Arrangement in Cooperatives
In practice, regarding the ownership of assets in the form of land by Cooperatives, there are still Cooperatives that commit irregularities through Nominee Arrangement (name lending). I actually found this Nominee Arrangement in 2 (two) Cooperatives located in the Province of East Java.
In other words, I do not intend to corner cooperative stakeholders but rather to show that in the Nominee Arrangement, there is a gap between the normative and the practice in the field. Therefore, to maintain the confidentiality and interests of the Cooperative in question, in this paper I will only mention the position of the Cooperative in question.
One of the cooperatives located in Mojokerto Regency acknowledges the ownership of the cooperative's assets in the form of land through the creation of a Contra Letter Statement Deed (Nominee Arrangement). The deed contains a unilateral statement that the basis of rights listed in a Certificate of Ownership (Nominee Arrangement) registered in the name of one of the Administrators is an asset belonging to the cooperative in question.
Furthermore, one of the cooperatives located in Malang City acknowledges the ownership of cooperative assets in the form of land and buildings by creating a Name Lending Agreement Deed (Nominee Arrangement). The Nominee Arrangement Deed contains an agreement between the Cooperative and one of the administrators whose name is borrowed to be included in the Certificate of Ownership as the Certificate is one of the proofs of ownership of the Cooperative in question, even though the Certificate is in the name of one of the Administrators.
Both Cooperatives in the Nominee Arrangement practice as the basis for ownership of Cooperative assets involve the role of a Notary to make the deeds referred to previously. The Notary in question, in carrying out his authority, should provide legal counseling related to the making of the deed with the aim Nominee Arrangement on land is a prohibited causa.
The Indonesian legal system does not allow the practice Nominee Arrangement for immovable objects in the form of land through Article 26 paragraph (2) of Law No. 5/1960 concerning Basic Regulations on Agrarian Principles (UU PA). The Supreme Court in its opinion also does not recognize the existence of a Nominee Arrangement practice in the ownership of land. This is based on SEMA No. 10/2020 concerning the Enactment of the Formulation of the Results of the Plenary Meeting of the Chambers of the Supreme Court in 2020 as Guidelines for the Implementation of Tasks for the Court.
In essence, the Nominee Arrangement practice in the ownership of immovable assets in the form of land carried out by Cooperatives is categorized as an action containing elements of a prohibited causa. Therefore, to show that this is a prohibited causa, the author uses legal discovery of Article 26 paragraph (1) of the UU PA. Furthermore, through the realization of the ratification of the Draft Law (RUU) on the Third Amendment to the Cooperative Law.
First, through the legal construction of Analogy in the formulation of the phrase in Article 26 paragraph (2) of the UU PA which states that, “……..acts intended to…..indirectly transfer ownership to….. legal entities except those stipulated by the government, are null and void and the land falls to the state…”
This can be analogized that if there is a written statement made by a person and a name lending agreement made between the person whose name is listed in the Certificate and the Cooperative through an authentic deed (notary deed) or a private deed to affirm that the ownership of the land belongs to the Cooperative as in the proof of right (Certificate) is listed in the name of the person concerned who made the statement is null and void and the land falls to the state.
If a Nominee Arrangement in the ownership of assets of a Cooperative is made in the form of an agreement, it does not fulfill one of the objective requirements in the conditions for the validity of an agreement as stated in Article 1320 point 4 of the Civil Code, namely a permissible (lawful) cause.
Basically, provisions regarding Cooperatives being able to own Land Rights with a basis of ownership in the form of Ownership Rights have been accommodated. The legal basis that legitimizes that Cooperatives can have Ownership Rights is Article 1 letter b of Government Regulation No. 38 of 1963 concerning the Designation of Legal Entities that can Have Ownership Rights to Land. joArticle 52 paragraph (1) letter b point 3 of the Regulation of the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency No. 18/2021 concerning Procedures for Determining Management Rights and Land Rights (PMATR No. 18/2021). The parameter used to determine whether Agricultural Cooperatives can be granted Ownership Rights is a Cooperative whose articles of association contain Agricultural and/or Plantation business activities as a single business or the only business carried out.
Secondrealizing the discussion and ratification of the Bill on the Third Amendment to the Cooperative Law. This is a separate urgency in the context of legal reform in the field of cooperatives. Considering that the Cooperative Law (vide Law No. 25/1992) is an outdated legislative product and it is time for legal reform in accordance with the times in order to realize the element of legal certainty.
It needs to be underlined in the draft Bill a quo prepared by the Ministry of Cooperatives and Small and Medium Enterprises has accommodated the obligation for the Management to act on behalf of all forms of Cooperative assets (wealth) in the name of the Cooperative (vide Article 50 paragraph (2) of the Bill a quo). In addition, if the Management violates the provisions of Article 50 paragraph (2), they can be threatened with a Criminal Sanction of a minimum fine of IDR 500,000,000 (five hundred million rupiah) and a maximum of IDR 1,000,000,000 (one billion rupiah).
Based on the transitional provisions in the draft Bill, it is explained that there is an imposition of obligations for Cooperatives that act on behalf of all forms of assets (wealth) in the name of individuals/other parties are given the opportunity to transfer the name of the assets that are in the name of individuals/other parties to be in the name of the Cooperative for a maximum of 5 (five) years since the Bill was enacted and enforced. Of course, this is not an easy matter considering that the process of transferring the name of the asset to be in the name of the Cooperative will cost a considerable amount.
Ratio Legis in Article 165 letter c of the Bill regarding the period for transferring the name of assets to be in the name of the Cooperative, in my opinion, the aim is to avoid disrupting the cash flow of the Cooperative and a means of legal protection for creditors if the asset is being mortgaged to the creditor in question to guarantee repayment of debts on loans received by the Cooperative. So from this, it can motivate Cooperatives to be able to pay off their debts to creditors and cash flow of the Cooperative is maintained.
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