The Difference Between Founders and Shareholders of a PT

The founders and shareholders of a Limited Liability Company (PT) play a very important role in the existence and development of the company. Where the founder of a PT is the individual or group responsible for establishing the company and starting its operations, and the shareholder of a PT is the individual, group, or entity that owns the company’s shares and becomes the owner of the company. However, PT founders are also often identified with shareholders. Is this statement true? And is there a difference in responsibility or authority between the founder and shareholder of a PT? Instead of being confused, let’s see the explanation below!

What is a PT?

Before discussing further about the differences between founders and shareholders of PT, of course, KH Friend must first know what PT is. Limited Liability Company (PT) is a legal entity that runs a business by having a capital consisting of shares, whose owners have as much shares as the shares owned. Because the capital is in the form of shares, the company can be traded and changes in company ownership can occur without having to dissolve the company. The amount of capital in a PT is stated in the Articles of Association, where the company’s wealth can be separated from personal wealth so that if something happens to the company, the personal wealth of the shareholder will not be used to cover losses. Each person can own more than one share to prove ownership of the company, and shareholders have limited liability as much as the shares they own. If the company makes a profit, the profit will be divided according to the predetermined provisions. Meanwhile, if the company’s debt exceeds the company’s wealth, the excess debt will not be the responsibility of the shareholders. Based on these benefits, many people are interested in buying shares in a PT or establishing a PT as their business entity.

What is the Difference between Founder and Shareholder in a PT?

It is important to note that the founders and shareholders of a PT have different roles in the company. What is the difference? Here’s the explanation:

The Founder of PT must be the Owner / Shareholder

In Law No. 40/2007 on Limited Liability Companies, it is stipulated that a PT is established on the basis of an agreement to conduct business activities with an authorized capital that is entirely divided into shares, and fulfills the requirements stipulated in the PT Law and its implementing regulations. A PT must be established by at least two or more people, either individuals or legal entities. They are then called the founders of the PT, who have the obligation to take part when the PT is established. The identity of the founders will also be included in the deed of establishment of the PT, where the shares, details of the number of shares, and some of the value of the shares that have been placed and paid up must also be included there. Since the founders of a PT are required to deposit shares, a PT founder can be referred to as a shareholder or shareholder of the PT. When a mutual agreement has been reached, the founders of the PT then jointly submit an application for legalization as a legal entity to the Ministry of Law and Human Rights. In a PT, the founders also act as directors. Based on Article 1 number 5 of the PT Law, the definition of directors is: “The Board of Directors is an organ of the Company that is authorized and fully responsible for the management of the Company for the benefit of the Company, in accordance with the purposes and objectives of the Company and represents the Company, both inside and outside the court in accordance with the provisions of the articles of association”. The duties and authority of the Board of Directors are further regulated in Article 92 (5) of the Company Law that in the event that the Board of Directors consists of 2 (two) or more members of the Board of Directors, the division of management duties and authority among the members of the Board of Directors shall be determined by resolution of the GMS. If later it turns out that the GMS does not obtain the division of duties and authority of the members of the Board of Directors, then the division of duties and authority of the Board of Directors shall be determined by resolution of the Board of Directors. In addition to being authorized for the day-to-day management of the Company, the BOD is also authorized to represent the Company both inside and outside the court.

Shareholders are not necessarily the founders of PT

On the other hand, people who own shares in a PT, or called shareholders, are not necessarily the founders of the PT. This is because in a PT, the founders can sell shares to the general public, so anyone can buy the shares. By law, it is permissible for shareholders to transfer their rights to shares. The transfer of rights to shares is done by deed and made before a notary or under the hand. The Articles of Association of a PT contain requirements regarding the transfer of rights to shares, namely:

Requirement to offer in advance to shareholders with a certain classification or other shareholders;
Requirement to obtain prior approval from the General Meeting of Shareholders, members of the Board of Directors, and the Board of Commissioners; and/or
Requirement to obtain prior approval from the competent authority in accordance with the provisions of laws and regulations, if the rights to shares transfer due to inheritance.

Thus, under the Articles of Association, if shares are to be sold, they must first be offered to other shareholders. If within 30 days of the offer no shareholder wishes to buy, the shares may be offered and sold to a third party. When the shares are bought by a third party, the shares will be transferred to the third party as a shareholder. A third party can become a shareholder if there is an issuance of new shares in the context of a capital increase or an acquisition of a PT by a third party. Thus, the owner of the shares or shareholder does not mean the founder of the PT.

What are the Shareholder Authorities?

Article 3 Paragraph 1 of the Company Law states that “Shareholders of the Company are not personally liable for agreements made on behalf of the Company and are not liable for the Company’s losses exceeding the shares owned”. This means that if there is a loss in the company that is not caused by the shareholders, then the shareholders’ personal assets will be separated and they will not be held responsible for the company’s losses. However, if the shareholder performs legal actions as a PT, thus harming the PT, then the shareholder must be responsible to the Board of Directors, and must even compensate the PT. The provisions in paragraph 1 do not apply in the following conditions:

The Company’s requirements as a legal entity have not been or are not fulfilled;
The shareholder concerned directly or indirectly in bad faith utilizes the Company for personal interests;
The relevant shareholder is involved in an unlawful act committed by the Company; or
The relevant shareholder directly or indirectly unlawfully uses the Company’s assets, which results in the Company’s assets becoming insufficient to pay off the Company’s debts.

Furthermore, this is the authority of the shareholders, among others:

The right to attend and vote at the General Meeting of Shareholders (GMS). However, in this case the GMS is taken based on the majority of shareholder votes.
The right to receive dividends or profit distribution of PT.
The right to obtain an explanation from the Board of Directors on the Company’s performance.
The right to equal treatment as a shareholder of PT.

That was the difference between the founder and the shareholder of a PT, along with the authority possessed by each party. From the explanation above, it can be concluded that the founder of a PT must be a shareholder when the PT is established, but a PT shareholder is not necessarily a founder because he can buy or get shares from the transfer of rights to shares, issuance of new shares, or acquisitions.

KH Contact

Well, for KH Pals who currently also want or are establishing a PT, but are still confused regarding the establishment process, fulfillment of legality, making articles of association, to the transfer of share ownership, you can immediately contact Kontrak Hukum.

As a digital legal platform, we can help you to consult and take care of everything related to PT with the most complete, fastest, and affordable services, 100% online without face-to-face! No need to worry, because your data and company information are guaranteed to be safe and protected. For more information on services that suit your needs, please visit the KH Services – PT Establishment and Share Transfer page. If you have any questions about PT or other forms of business entities, feel free to contact us at Ask KH or via direct message (DM) to Instagram @kontrakhukum.