Shares of the Company (PT)
Shares of the Company (PT)
شركة المساهمة
Shirkah al-musâhamah is a translation of the joint-stock company . The new Muslims knew came from the west in recent times. Joint-stock company is the type of company or partnership that involves two or more persons who have a stake in the company's shares.Proof of ownership (shares) issued by the company as compensation for any contribution of capital. Shareholders are free to transfer their ownership at any time by selling it to another party.
At the law firm joint-stock company synonymous with the corporation (company) which is a separate legal entity from the owners of the shares; and responsibilities are limited, which means the owners of the stock is only liable for corporate debts limited to the value of the money they invest in the company. Because of that joint-stock company (partnership shares / shirkah al-musâhamah ) is known as a corporation (company) or company (corporation) limited ( limited company ). [1]
Company Limited is a partnership to run a business that has a capital consisting ofshares , which has a part owner of shares owned. Because capital consists of stocks that can be bought and sold, changes in corporate ownership can be done without the need to dissolve the company. [2]
Article 1 paragraph (1) Act No. 40 of 2007 regarding Limited Liability Company says, "Limited Liability Company, hereinafter called the corporation, is a legal entity which is a capital alliance, established under the agreement, conduct business activities with a total authorized capital divided into shares and meet requirements established in this law and its implementing regulations.
Al-Allama Sheikh an-Nabhani Taqiyuddin explains, "people define capitalists shirkah al-musâhamah is an agreement (contract) whereby two or more people tied to each contribute in business projects with the deposit of property (capital), to share profits and losses that arise from the project. " [3]
The process of formation of al-musâhamah shirkah (PT), beginning of the prospective founders (minimum two people) to negotiate the terms and rules of PT including the amount of capital that is divided into how many shares, PT business type, name, etc.. Also the distribution of shares among them. Then given the opportunity to prospective founders - others are also possible - to sign a contract and the establishment of PT's rules, as well as determining how many shares are taken. All who became the founder of PT's signature.Each founder was obliged to deposit the appropriate amount of capital stock taken. Then the shareholders were doing the AGM determines the board of directors and board of commissioners. Contract establishment of PT was confirmed by notarial deed. The next step, the directors of PT PT must register to obtain status as a corporation. After obtaining approval from Kemenhukham the PT is authorized as a legal entity.
Shirkah al-musâhamah (Limited Company) has specific characteristics, including:
1. Is a capital alliance.
2. Is a unilateral action by the will ( will of god munfaridah ). A person can become a shareholder solely dependent on his will unilaterally, and does not depend on the willingness of the partners or other approval.
3. As a legal entity ( rechtsperson, legal entity, juristic person , or artificial person / syakhshiyah ma'nawiyah ) is an artificial legal person, a body or association, which is treated as an independent legal subject is equated with the individual, having rights and obligations, may have own property, sue and be sued in court.
4. As a legal entity, PT has its own property in its own name, separate from the assets of the shareholders.
5. Each time shareholders can transfer ownership of its shares, for example by selling it, to another party.
6. The existence of PT is not limited in time and is not connected with the existence peseronya. PT did not disperse even though shareholders died, insane, or dihijir, etc..
7. Liability limited shareholders, namely the extent of shares dimiliknya. If the debt exceeds the company's corporate wealth, then it is not the responsibility of the shareholders.
Legal Personality ' Shirkah al-Musâhamah (PT)
Shirkah al-musâhamah a partnership agreement or shirkah. Therefore must first be seen from the law of Personality 'of the contract and shirkah.
When analyzed according to sharia law on the contract and shirkah, then it could be concluded Shirkah al-musâhamah (Company Limited) is a vanity shirkah. The reasons include:
First , from the aspect of the contract, shirkah in Islam is an agreement between two or more persons who agree to perform activities that are financial (business activity) with the intent for profit. Contract must be based on common will ( will of god musytarakah ). In it there should be two-party consent states that the parties (invitation) and those who claim qabul (acceptance / persetuan). Meanwhile in the contract PT, what happens is the will of unilateral ( munfaridah will of god ). Approval of other shareholders and willingness are not counted at all. People can become members of the fellowship (shirkah) PT was based on his own course without agreement, consent or willingness of other parties. So what happened is not an agreement that is not a contract. In the PT is also no party consent states. There was only those who claim qabul only. Because what happens is simply talks about the terms and rules shirkah (PT), then created a document (certificate), who wants to join can sign it and Stand PT's. Each qabul only states to accept the terms and rules of PT's, without any solicitation that states parties (consent). So it does not happen and qabul consent. Therefore, according to sharia, it is a contract shirkah PT shirkah vanity and therefore it could not otherwise been established.
Second , in the PT is no agreement to do business that is financially. Though it is an object of the contract ( al-ma'qûd 'alayh ) shirkah according to sharia. Agreement to do business means doing business that must be by one or all the partners, and this did not occur in the PT. There is only an agreement to deposit the capital, while the implementation of the effort made by those other than the corporation's PT. None of the partners of PT (shareholders) who are directly responsible and do the business activities of PT's. So in the contract of PT was no al-ma'qûd 'alayh shirkah contract and therefore PT is vanity.
Third , the syar'i, in the contract there must be an element shirkah bodies, namely the party responsible and conduct business activities shirkah. Any element of this body to determine the presence or absence shirkah. In the PT that there is only an element of capital. PT is recognized only a capital alliance. Since there is only an element of capital, then it syar'i shirkah PT does not exist in the absence of the body element.
Fourth , the syar'i, covenants shirkah is a form of property development and it is a legal action (tasharuf) qawliyah . Tasharruf it just might be born of a person, namely the human body, rather than capital or objects. In the PT, it develops its own capital without any loss in the absence of the partners and managers are entitled to manage. According to sharia developments such property is vanity.
Fifth , tasharruf in the PT left and only a legal right PT was acting for and on his own name, and separate from the shareholders (of the partners). Board of Directors of PT represents merely a legal entity that, nothing more. In syar'i, tasharruf it should be born of man, because men that are taklif and can do tasharruf. Artificial legal entity is subject, can not be subjected taklif and can not do tasharruf. Because it's all legal tasharruf (PT), according to sharia is vanity.
Sixth , the scholars agreed, shirkah is 'aqdun jâ'izun . This means that whenever the partners ( syarîk ) could cancel it and the very existence depended on the existence shirkahsyarîk. In contrast with PT where PT is permanent existence does not depend on the existence of the partners. This clearly violates sharia.
As a result, contract shirkah al-musâhamah (PT) as above is syar'i is vanity. Consequently, syirkahnya never stood, never existed. The whole tasharrufnya both buying and selling, lease, contract, power of attorney, etc., is vanity. All property acquired through shirkah al-musâhamah (PT) is property obtained through the vanity of vanity tasharruf owned so not kosher. wallah knows best bi-shawâb ash . [Yahya Rahman]
[1] http://en.wikipedia.org/wiki/Joint-stock_company
[2] http://id.wikipedia.org/wiki/Perseroan_terbatas
[3] Al-Allama Sheikh an-Nabhani Taqiyuddin, an-Nizam al-Iqtishâdî fi al-Islam , p.. 168, Dar al-Ummah, cet. Vi (mu'tamadah). 2004
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