MODULE X

LEGALITY ASPECT AND ENVIRONMENT ASPECT

PRACTICUM OBJECTIVES

1. Students are able to determine and collect the necessary data regarding the legality aspect

of the company. 2. Students are able to understand and completeness of data in making Surat Izin Usaha

Perdagangan (SIUP). 3. Students are able to determine the cost of Surat Izin Usaha Perdagangan (SIUP) required

in accordance with the conditions and location of the business. 4. Students are able to make an AMDAL plan in accordance with the business undertaken.

PRACTICUM OUTLINE

X.1 Legality Aspect

X.1.1 Surat Izin Usaha Perdagangan (SIUP)

X.1.2 Brand

X.1.3 Classification of Legal Entities

X.1.4 Type of Land Ownership

X.2 Environment Aspect

X.2.1 Definition of AMDAL

X.2.2 Use of AMDAL

X.2.3 The Environmental Impact Assessment Procedure

X.2.4 Environmental Impact Assessment Process Steps

THEORY EXPLANATION

X.1 Legality Aspect

X.1.1 Surat Izin Usaha Perdagangan (SIUP)

In establishing a business, things that should not be missed is to complete business licensing, one

of them is the Surat Izin Usaha Perdagangan (SIUP). Surat Izin Usaha Perdagangan (SIUP) is a

license to be able to run a trading business. Every trading company is required to have Surat Izin

Usaha Perdagangan (SIUP). The provisions concerning the obligations of companies in having

Surat Izin Usaha Perdagangan (SIUP) are contained in clause 2, point 1 of Regulation of the

Minister of Trade No. 46/M-Dag/Per/9/2009.

1. Terms of Surat Izin Usaha Perdagangan (SIUP)

Surat Izin Usaha Perdagangan (SIUP) is a business license issued by a government agency

through the Department of Industry and Trade of city / region according to the domicile of

the company. Surat Izin Usaha Perdagangan (SIUP) is used to carry out business activities

in the field of trade of goods / services in Indonesia.

2. Types of Surat Izin Usaha Perdagangan (SIUP)

According to the Regulation of the Minister of Trade on Amendment to Regulation of the

Minister of Trade No. 46/M-Dag /Per/9/2009, Issuance of Trading License is divided into

3 classifications, among others:

a. Little Surat Izin Usaha Perdagangan (SIUP) clause 2, point 2

Little Surat Izin Usaha Perdagangan (SIUP) must be owned by a trading company

whose net worth (paid up capital) is more than Rp 50.000.000 (fifty million rupiah) up

to a maximum of Rp 500.000.000 (five hundred millio n rupiah) excluding land and

building of business premises (clause 3, point 1).

b. Medium Surat Izin Usaha Perdagangan (SIUP) clause 2, point 2

Medium Surat Izin Usaha Perdagangan (SIUP) must be owned by a trading company

whose net worth (paid up capital) is more than Rp 500.000.000 (five hundred million

rupiah) up to a maximum of Rp 10.000.000.000 (ten billion rupiah) excluding land and

building of business place (clause 2, point 2).

c. Large Surat Izin Usaha Perdagangan (SIUP) clause 2, point 2

Large Surat Izin Usaha Perdagangan (SIUP) shall be owned by a trading company

whose net worth (paid up capital) is more than Rp 10.000.000.000 (ten billion rupiah)

excluding land and building of business premises (clause 2, point 2).

Beginning in 2017 SIUP does not need to be re-registered. Elimination of

reregistration of SIUP is regulated in Article 7 of the Regulation of the Minister of

Trade 7/M-DAG/PER/2/2017. SIUP applies to Trading Companies that run business

activities and never exist.

Companies that are exempt from The Surat Izin Usaha Perdagangan (SIUP) are:

1. Branches of companies where Surat Izin Usaha Perdagangan (SIUP) is owned by head

office.

2. The company has obtained the equivalent business license from the technical department.

3. Production company in the framework of PMDN.

4. BUMN and BUMD.

5. Individual small company.

6. Grocers, street vendors, and street vendors.

X.1.2 Brand

1. Brand Definition

Brand is a graphical representation of images, logos, names, words, letters, numbers,

arrangement of colors, in the form of two dimensions and / or three dimensions, sound,

hologram, or combination of two or more of such elements to distinguish goods and / or

services produced by a person or legal entity in the goods and / or services trade activities.

a. Trademark

Trademarks are brand used in goods traded by a person or persons jointly or by a legal

entity to distinguish from other similar items.

b. Brand Services

Service brand is a brand that is used for services traded by a person or persons jointly or

a legal entity to differentiate with other similar services. 2. Branding Procedures

Based on Law No. 20 of 2016, it is decided the flow or procedure in making the registration

of the brand as below

Figure X. 1 Branding Procedures

3. Branding Cost

Based on Government Regulation Number 45 of 2016 Second Amendment to

Government Regulation Number 45 of 2014 concerning Types and Tariffs of Non-Tax

State Revenues Applicable to Ministry of Law and Human Rights ("PP 45/2016"). For

the type of intellectual property rights services as mentioned in Appendix of Non-Tax

State Revenue Entry applicable to the Ministry of Justice and Human Rights, the tariff of

'Per Class' is applied for the application for registration of the brand. For the Tariff of

Application for Registration of Brand shall be set per class:

a. Micro and Small Business

1) Electronically (online): Rp. 500.000 per class

2) In non-electronic (manual): Rp. 600.000 per class

b. General

1) Electronically (online): Rp. 1.800.000 per class

2) In non-electronic (manual): Rp. 2.000.000 per class

This as you mentioned above, if you have 1 brand etiquette to be registered in 4 different

classes, you are charged a fee for each class. In accordance with clause 28 of Law Number

15 of 2001 concerning Trademarks ("Trademark Law") shall be declared valid for a

period of ten years from the date of receipt and the period may be extended. Then, in

clause 35, point 1 of the Recording Act, the trademark owner may at any time apply for

an extension for the same period of time. X.1.3 Classification of Legal Entities

The legal aspect reviews about the legality of the proposed project to be built and to be operated,

meaning that any project going to be established and built in a particular region must comply with the laws and regulations of that particular region according to Suratman (2001). To become

a legal enterprise, the owner of the company must register the company as a legal entity

registered under the laws in Indonesia. According to Ali Rido requirements that must be fulfilled

by a legal entity is as follows:

1. Separated wealth

2. Has a specific purpose

3. Has a personal interest

4. Organized organization

According to the provisions of clause 1653 of the Civil Code or knows as KUH Perdata, there

are three kinds of classification of legal entities based on their existence, namely:

1. Legal entities formed by the government (one with authority) or can be claimed as state-

owned enterprises, among them are government agencies, such as Provinc ia l Region,

Regency / City, banks, and companies established by the government and so on.

2. Legal entities recognized by the government (one with authority), for instance,

cooperatives, etc.

3. A legal entity that is allowed or has a certain purpose that is considered ideal, such as

limited liability company (PT), CV, Firm. Based on clause 1653 of Civil Code (KUH Perdata), the type of legal entities applicable in

Indonesia are as follows:

1. Limited Partnership (CV)

CV is a non-legal entity that has one or more complementary allies and a commanding

partner. Complementary allies are entitled to act for and on behalf of all partners and to

take responsibility for third parties jointly (clause 1, point 5 of the RUU) The definition

of CV is described in clause 19 of the Book of Commercial Law or known as Kitab

Undang-undang Hukum Dagang (KUHD). In the clause it is mentioned that CV is a

company formed by way of lending money, which is established by a person or several

persero people who are jointly responsible and one pesero or more who act as money

lenders. On the other references, lending of capital or commonly called "inbreng", can

be shaped other than money, such as objects or others.

2. Firm

The firm according to clause 16 of the Civil Code (KUHD) is define as any civil

partnership established to run a company under one common name. So, the firm is a

special civil alliance, that is, using one common name or firm.

In the eyes of a third party, each of the firm's allies is responsible for all firm

engagements (clause 18 KUHD). However, it should be remembered that only the

authorized allies under the firm's charter that may sue the third party (clause 17

KUHD). Thus, an unauthorized ally or even authorized but whose conduct is

inconsistent with the scope of the firm's activity, the respective partner is individua l ly

responsible for his actions in the name of the firm.

3. Limited Liability Company (PT)

Limited Liability Company is a legal entity established under the agreement, engages in

business activities with a total authorized share capital, and meets the requireme nts

determined in this Law and its implementing regulations. (clause 1, point 1 UUPT).

There are 5 types of PT in Indonesia:

a. PT Closed or Regular PT

PT is Covered with shares owned by certain people, shares are not sold to the public.

Shares in the form of stock in the name, i.e. shares which listed the names of

owners who registered as a member of the PT:

1) Minimal basic Capital 50jt rupiah.

2) Include your company name in front of PT.

3) Everything about PT closed can be seen in law No. 40 Year 2007 about PT.

b. PT Open also called PT. Go Public

PT is Open with shares traded or doing initial public offering of shares, through the

stock market or stock exchange in accordance with the provisions of the legislation

in the field of capital market. Shares in the form of shares of the top point, i.e.

shares which listed the name of the owner:

1) Stock Owners are the ones who hold stocks and shares can be traded freely.

2) Lists the names of the PT in front of the name of the company and the end of the

company name lists (Tbk)

3) Minimal basic Capital 3milyar rupiah

4) Stock owned at least 300 shareholders

5) Everything related to PT Open can be seen in 40 Years of law No. 2007 of PT and

law No. 8 year 1995 Regarding capital market.

c. PT Domestic Investment (PMDN)

Domestic Investment (PMDN) is a PT with capital investment in the country to do

business in the territory of the Republic of Indonesia conducted by domestic

investor using domestic capital.

Everything related to PT PMDN can be seen in Act No. 25 of the year 2007 On

capital investment.

d. PT Foreign Investment (PMA)

Foreign Investment (PMA) is the planting of capital to do business in the territory

of the Republic of Indonesia conducted by the investor fully or in part with foreign

investor in the country.

Everything related to PT PMDN can be seen in Act No. 25 of the year 2007 On

capital investment.

e. PT Persero

Refines the is a State-owned enterprise with a capital of all or part of State-owned

and is separated from the wealth of the country. Originally shaped State enterprises

(PN), the current is converted to PT to increase efficiency.

Everything related to Persero can be seen on: PP No. 12 Year 1998 about the

company Refines; Act No. 19 year 2003 About STATE-OWNED ENTERPRISES;

Law No. 40 Year 2007 Regarding limited liability company.

4. Private company (Perusahaan Perorangan)

Private company is a company supervised and managed by individual. All corporate

profits and risks arising in the company's activities are borne by the individual.

5. State Enterprise (Perusahaan Negara)

A State Enterprise is a company whose capital is partly or wholly or separately of state

assets or from the State Revenue and Expenditure Budget of commonly known as State

budget (APBN). Based on Law Number 9 of 1969.

State enterprise comprises of Departmental Enterprise, Public Enterprises, and Public

Company.

a. Departmental Enterprise (Perusahaan Jawatan) is a company whose entire capital

includes part of the budget which is the right of a department;

b. Public Enterprise (Perusahaan Umum) is a company whose capital is owned by the

state and its funds are derived from separated state assets;

c. Public Company (Perusahaan Perseroan) is a company wholly or partly of capital

derived from separated state assets.

6. Cooperative (Koperasi)

Cooperative is a business entity consisting of a person or legal entity cooperative with the

principles of cooperatives as well as the people's economic movement based on the

principle of kinship (UU No. 25 of 1992).

Principles of cooperatives according to UU No. 25 of 1992:

a. Members are voluntary and open willingness meaning it the member wants to build a

national economy or society to be able to voluntarily and openly participate in

membership in the cooperative.

b. Management carried out democratically means the management is done for the

benefit of the people who need help.

c. The remaining results of the business (SHU) which is an advantage of the business

undertaken by the cooperative is divided based on the size of the services of each

member. Sharing the results of SHU to the people equally and to get capital back for

cooperative management.

d. Capital is given limited services.

e. Independence without any government intervention in managing the cooperative.

f. Cooperative education held training to socialize to the community about the good

cooperative management.

g. Cooperation between cooperatives conveying aspirations and opinions at the time

they are experiencing problems and additional capital.

X.1.4 Type of Land Ownership

1. Ownership (HM)

Ownership can be defined as rights that have an unlimited period of time (ongoing), rights

that can be inherited. This Ownership can also be interpreted as a descending, and fully

fulfilled right that a person can have on land and has a social function, where the

ownership rights are based on the existence of Point 20 UUPA concerning Ownership.

2. Cultivation Rights (HGU)

Based on Point 28 of UUPA the Cultivation Rights is the right to undertake agricultural

activities (Plantation, Farms, Fisheries) on State land for a period of 25 years. This right

can be transferred to other parties, and only Indonesian citizens or Indonesian legal entities

can own it.

3. Building Rights (HGB)

Based on Point 30 of UUPA , Right to Build is the right to build buildings on State land for

30 years and can be extended for a period of 25 years, can be applied to other parties and

only Indonesian Citizens / Legal Entities can own it.

4. Right of Use (HP)

Based on Point 41 of UUPA, the right to use and / or collect results from land that is

controlled directly by the State or other people's land.

5. Rental Rights

Rental rights are rights that authorize the use of land owned by another person by paying

the owner some money as a rent

X.2 Environmental Aspect

The environment is the unity of space with all things, power, circumstances and living creature,

including human beings and their behavior, which affect the viability of human life and welfare

and other living creature (Law 32/2009). Environmental Aspect is conducted in order to know

the impact of a production process of a company, either negative impact or positive impact.

Therefore, before the business is run, it is necessary to learn the environmental impacts to find

out the impacts that will arise and be analyzed and planned to minimize or eliminate the impacts

with Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan (AMDAL)).

X.2.1 Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan

(AMDAL)) Definition

Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan (AMDAL)) has

been developed by several developed countries since 1970 under the name of environmental

impact analysis or environmental impact assessments, both of which are abbreviated as EIA. Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan (AMDAL)) is a study

of the major and significant impacts for decision-making of an undertaking and / or planned activity

on the environment that the decision-mak ing process of business and / or activity takes. Based on Government Regulation No. 27/1999 about Environmental Impact Assessment

(Analisis Mengenai Dampak Lingkungan (AMDAL)), explains that the Environmental Impact

Assessment is a study of the major and important impacts for decision-making of an undertaking

and / or planned activity on the environme nt necessary for decision-making processes

concerning the conduct of business and / or activities. The also is a study of the positive and

negative impacts of an action plan / project, which the government uses to decide whether an

activity / project is feasible or not environmentally feasible. The study of positive and negative

impacts is usually prepared by considering the physical, chemical, biological, socio-economic,

socio-cultural and public health aspects. According to Otto Soemarwoto (2003: 1), it is stated that: "Environmental Impact Assessment is

a reaction to environmental damage by increasing human activity, including environmental

pollution by pesticides and industrial waste commite transport, destruction of rare plant and

animal habitats, as well as the low aesthetic value of nature".

X.2.2 Use of Environmental Impact Assessment (Analisis Mengenai Dampak

Lingkungan (AMDAL))

With the existence of investment or business activities, the components of the environment will

automatically change with cause various impacts, especially negative impacts that are not

desirable. Some of the EIA’s role for the company: 1. The Environmental Impact Asessment (Analisis Mengenai Dampak Lingkungan(AMDAL))

is document for planning regional development 2. The Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan

(AMDAL)) can help the decision making process about the environmental feasibility of the

business plan and/or/ activities/projects 3. The Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan

(AMDAL)) can estimate the environmental impacts that will arise from the company or the

company we build. 4. The Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan

(AMDAL)) is part of the technical and economic aspects that indicate the state of the

environment for the realization of the project, especially the resources required for the

project such as water, energy, human, and natural threats. 5. The Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan

(AMDAL)) provide information to the community over the impacr caused from a business

plan and or activites/projects 6. The Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan

(AMDAL)) provide an alternative solution of minimization of negative impact 7. The Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan

(AMDAL)) as an important document. The AMDAL report is an important document of

detailed information on the state of the environment at the time of the project research and

an overview of the environmental conditions in the post-project period. X.2.3 The Environmental Impact Assessment Procedure

Here are the procedures to be followed in The Environmental Impact Assessment:

1. The screening process must be Environmental Impact Assessment (Analisis Mengenai

Dampak Lingkungan (AMDAL))

2. The announcement processes

3. Scoping process

4. Preparation and assessment of KA-ANDAL

5. Preparation and assessment of ANDAL, RKL, and RPL

6. Environmental Approval Agreement

X.2.4 Environmental Impact Assessment Process Steps

Based on the State Minister of Environment Regulation No. 8/2006 on Guidelines for the

Preparation of Environmental Impact Assessment, the EIA process outlines the following steps:

1. Identify the impact of the planned business and or activity

Based on this analysis can be known in more detail the negative and positive impacts

arising from the business or activity, so that early steps have been prepared to cope with

negative impacts and develop positive impact.

2. Describe the initial environmental tone

The description of the environmental tone describes the relevant data or is relevant to the

possible impact of the business plan and / or activity. This description is based on

secondary data that is actual and supported by field observation results. In the event that

there are several alternative locations, the description of the environmental tone is applied

to each alternative location.

3. Predict significant impacts

This section describes the impact forecasting method used to forecast the magnitude and

significance of impacts in the be Environmental Impact Assessment (Analisis Mengenai

Dampak Lingkungan (AMDAL)) study for each of the important hypothetical impacts,

including formulas and assumptions of forecasting impacts with arguments / reasons for

selection of the method.

4. Evaluate important impacts and formulate RKL / RPL directives

This section describes the methods commonly used in be Environmental Impact

Assessment (Analisis Mengenai Dampak Lingkungan (AMDAL)) studies to evaluate the

critical impacts of business andlor activities on the environme nt holistically (eg, matrix,

flow chart, overlay).

The form of be Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan

(AMDAL)) study result is an EIA document consisting of 5 (five) documents, namely:

Document of Terms of Reference of Environmental Impact Analysis (KAANDAL),

Environmental Impact Analysis (ANDAL) Document, Environmental Management Plan

Document (RKL), Document of Monitoring Plan Environment (RPL), Executive Summary

Document.

a. Terms of Reference for Environmental Impact Analysis (Kerangka Acuan Analisis

Dampak Lingkungan (KA-ANDAL))

KA-ANDAL is a document containing the scope and depth of the ANDAL study.

Determining the scope and depth of this study is an agreement between the Activity

Proponent and the EIA Appraisal Commission through a process called scoping

process. Some examples of contents of railways include spatial permits, location

principle permits, related maps, and so on. In addition, there should also be socialization

with the surrounding community in the form of bulletin boards.

b. Environmental Impact Analysis (Analisis Dampak Lingkungan (ANDAL))

ANDAL is a document that contains a careful review of the important impact of an

activity plan. Once the magnitude of the impact is known, further determinat ion of the

nature of the impact is important by comparing the magnitude of the impact on the

important impact criteria set by the government. Next is an evaluation of the

interrelationship between impacts with each other, namely to determine the basics of

impact management to be done to minimi ze negative impacts and maximize positive

impacts.

c. Environmental Management Plan (Rencana Pengelolaan Lingkungan (RKL))

RKL is a document containing efforts to prevent, control and mitigate the negative

environmental impacts and maximize the positive impacts of an activity plan.

d. Environmental Monitoring Plan (Rencana Pemantauan Lingkungan (RPL))

RPL is a document containing monitoring programs to see the environme ntal changes

caused by impacts arising from the activity plan. The results of this monitoring are used

to evaluate the effectiveness of environmental manageme nt efforts that have been

undertaken, the initiator's compliance with environmental regulations and can be used to

evaluate the accuracy of the impact prediction used in the ANDAL study.

e. Executive Summary

Executive Summary is a document that summarizes briefly and clearly the results of the

ANDAL study. The things to be said in the executive summary are usually brief

descriptions of the magnitude of impacts and the significant nature of the impact

assessed in the ANDAL and the environmental management and monitoring efforts that

will be undertaken to manage the impacts.

REFERENCES

Otto Soemarwoto. 2003 . Analisis Mengenai Dampak Lingkungan. Yogyakarta, Gadjah Mada

University Peraturan Menteri Perdagangan Republik Indonesia Nomor : 46/M-DAG/PER/9/2009 Tentang

Perubahan Atas Peraturan Menteri Perdagangan Republik Indonesia Nomor

36/MDAG/PER/9/2007 Tentang Penerbitan Surat Izin Usaha Perdagangan Peraturan Pemerintah Nomor 45 Tahun 2016 Perubahan Kedua Atas Peraturan Pemerintah

Nomor 45 Tahun 2014 tentang Jenis dan Tarif Atas Jenis Penerimaan Negara Bukan Pajak

yang Berlaku pada Kementerian Hukum dan Hak Asasi Manusia (“PP 45/2016”). Prof. Dr.Mr.L.J. Van Apeldoorn, Pengantar Ilmu Hukum, Pradnya Paramita, Jakarta, 2011., hlm

193. Sri Soedewi Masjchoen dalam Salim HS, Pengantar Hukum Perdata Tertulis (BW), Sinar

Grafika, Cetakan kelima, Jakarta, 2008, hlm 26.