THE POSITION OF THE ALLIES IN THE LIMITED

PARTNERSHIP WITH THE APPLICATION OF THE

CIRCULAR LETTER OF THE MINISTER OF ATR / KBPN
NUMBER 2 / SE-HT.02.01 / VI / 2019

Kadek Diah Dwipayanthi Gina, Johannes Ibrahim Kosasih, Anak Agung

IstrI Agung
Magister of Notary, University
Warmadewa, Denpasar, Bali-Indonesia
diahgina13@gmail.com

Abstract
The Right to Build is a right that can be owned by Indonesian citizens and Legal
Entities domiciled and established according to Indonesian law and domiciled in
Indonesia. The legal basis for the Right to Build is regulated in Articles 35 and 36 of the
Agrarian Law Act, but with the issuance of the Circular Minister of Agrarian Spatial
Planning / Head of the National Land Agency Number 2 / SE-HT.02.01 / VI / 2019
concerning the Granting of Building Use Rights to the Military Alliance (Commanditaire
Vennootschap) causes a limited partnership (CV) that is not a legal entity in the form of a
legal right to a building right. Regarding this issue, the researcher wants to study the
existence of the Circular of the Minister of Agrarian Affairs and Spatial Planning / Head of
Land Agency Number 2 / SE-HT.02. 01 / VI / 2019 and the position of allies in the Military
Alliance after the issuance of the Circular. This research uses normative legal writing
method with a statutory approach (statue approach) and conceptual approach. Based on
the results of the study it can be concluded that the existence of the Circular Letter of the
Minister of ATR / KBPN Number 2 / SE-HT.02.01 / VI / 2019 does not exist in the
Indonesian legislative hierarchy, this Circular Letter actually raises legal uncertainty and
new problems because the nature of the Circular as a notification not as a norm that can
regulate, other than that the provisions of this Circular Letter are not clear because based
on the nomenclature the Right to Build is given to the Alliance of Commandments, but the
contents in the Circular mention allies who register the Right to Build and on behalf of the
allies at the Alliance of Commanders. Regarding the position of the allies in the Alliance
of Commandments, the Circular Letter may change the position of the allied partners in
the Alliance of Communities (CV) if the provisions of Number 5 letter b contained in the
Circular are carried out by the limited allies.

Keywords: Circular, Building Use Rights, Limited Partnership

1. INTRODUCTION

Land is a thing that can’t be separated from human life, land

including natural resources that are important for human life not only as a
place for survival, often land is used as an object of income for humans
and many other uses that support human life, among others such as
establishing a place to live, building a business place such as an office
building, an industrial place, farming and so on because land is not only a
place and also produces crops needed for survival.
 Once the importance of the function of land for human life is the
need for legal arrangements to ensure legal certainty about land rights,
especially in Indonesia. With the availability of written legal instruments,
anyone with an interest will easily know what possibilities are available to
him to control and use the land he needs, how to obtain it, rights,
obligations, and what restrictions exist in controlling land with rights.
certain rights, what sanctions he faces if the relevant provisions are
ignored, as well as other matters relating to the control and use of the land
he owns.1
September 24, 1960 The President of the Republic of Indonesia
endorsed and promulgated in the State Gazette of the Republic of
Indonesia Number 104 of 1960, Law Number 5 of 1960 concerning Basic
Agrarian Regulations (to be referred to as the Basic Agrarian Law or
UUPA).2The purpose of the promulgation of the Agrarian Law Act as a legal
basis in agrarian affairs in Indonesia, Article 16 of the Agrarian Law Act
regulates land rights, one of the regulated rights namely Building Use
Rights, further arrangements regarding Building Use Rights are found in
Articles 35 and 36 of the Agrarian Law Act. Article 36 of the Agrarian Law
Act regulates that can have the Right to Build is Indonesian Citizens and
Legal Entities established under Indonesian law and domiciled in Indonesia.
However, over time the interest of business people to have the Right to
Build has increased. The Minister of Agrarian Affairs and Spatial Planning /
Head of the National Land Agency who has the authority in the land sector
issues a Circular Letter with registration number 2 / SE-HT.02.01 / VI /
2019 concerning the Granting of Building Use Rights to the Commanditaire
Vennootschap.
Limited Partnership or CV is a business entity that is not a legal
entity that raises the question of how a CV can have a Right to Build based
on the Circular of the Minister of Agrarian Affairs and Spatial Planning /
Head of the National Land Agency Number 2 / SE-HT.02.01 / VI / 2019
concerning Granting of Rights Use building for limited partnership
(Commanditaire Vennootschap). The problem in this research plan is
whether the Commanditaire Vennootschap can obtain the status of Building
Use Rights based on Circular Letter 2 / SE-HT.02.
Based on the description above and the problems that arise, then
the researcher wants to examine about 'STATUS OF THE ALLIANCE OF
COMMANDITERS' FELLOWS BY THE APPLICATION OF CIRCULAR LETTER
NUMBER 2 / SE-HT.02.01 / VI / 2019 "

2. METHODS

1
Boedi Harsono, 2008, Indonesian Agrarian Law History of the Establishment of
the Basic Agrarian Law, Content and Implementation Volume 1 National Land Law,
Djambat, Jakarta, p. 69

2
Boedi Harsono, 1997, Indonesian Agrarian Law History of the Establishment of
the Basic Agrarian Law, Content and Implementation, Jakarta, Djambat, p. 1
 This type of research uses library research methods qualitative normative
juridical nature, the source of which is obtained from literature and study
documents. So that the author with qualitative normative juridical legal research
is intended to find a solution of the problem by using library materials, existing
legal theories including legislation and legislation. So it can be examined the
problems of this study so that conclusions can be drawn on what is obtained.
This study uses an approach that is relevant to the problem under study,
namely using the legislative approach and conceptual approach. The method of
approach to the law is carried out by examining the laws and regulations
concerned with the issue being addressed. This approach is used to study in
depth about the legal position of limited partnership companies that obtain
building rights based on circulars2 / SE-HT.02.01 / VI / 2019, while the
conceptual approach uses thought concepts to analyze problems.

3. RESULT AND DISCUSSION

The Existence of the Circular of the Minister of Agrarian Affairs and
Spatial Planning / Head of the National Land Agency Number 2 / SE-
HT.02.01 / VI / 2019 concerning Granting of Building Use Rights for
Limited Partnership (CV) Against Legislative Hierarchy
The issuance of the Circular of the Minister of ATR / KBPN Number 2 / SE-
HT.02.01 / VI / 2019 concerning the Granting of Building Use Rights for the
Commanditaire Venootschap is the authority of the Minister of Agrarian and
Spatial Planning who is also the Head of the National Land Agency in the
implementation of its duties and authorities in the land sector. In carrying out
their duties the Ministers including the Minister of ATR / KBPN in formulating
policy regulation products are inseparable from the use of Freies Ermessen,
namely the freedom of a state administrative agency or body concerned to
formulate its policies in various forms of legal rules or juridical rules, such as
regulations, guidelines, announcements, circulars and announcing that wisdom. 3
Issuance of the Circular of the Minister of ATR / KBPN Number 2 / SE-
HT.02.01 / VI / 2019 issued by the Minister of ATR / KBPN based on the
authority of the Minister to determine policy regulations (beleidregel) by
complying with Ermessen's Freedom of Action / Fries rules and manifested in the
form of issuance of policy regulations (beleidregel) in the format of the Minister's
Circular, in order to provide implementation instructions in the process of
granting HGB to the Military Alliance, especially to the Head of the Land Office as
subordinate of the Minister of ATR / KBPN as well as implementing the
registration and registration of land rights.
Minister of ATR / KBPN Circular Letter Number 2 / SE-HT.02.01 / VI /
2019 concerning Granting of Building Use Rights for the Commanditaire
Venootschap is issued based on the provisions of positive law in force in
Indonesia, but the existence of the Letter The Circular of the Minister of ATR /
KBPN Number 2 / SE-HT.02.01 / VI / 2019 does not fulfill the validity as a
Circular which is only as a notification.

3
Philipus M. Hadjon, 2005, Introduction to Indonesian Administrative Law,
Gadjah Mada University Press, Yogyakarta, p. 130.
 The contents of the Circular of the Minister of ATR / KBPN KBPN Number
2 / SE-HT.02.01 / VI / 2019 concerning the Granting of Building Use Rights for
the Commanditaire Venootschap consists of 5 discussion points, addressed to the
Head of the Regional Office of the National Land Agency and the Heads of Land
Offices throughout Indonesia.
01 / VI / 2019 there is no explanation regarding a regulation but
according to the author this Circular provides a new policy / regulation that was
never previously regulated, namely the granting of Building Use Rights for a
Limited Partnership (CV) which indeed has never been set regarding the granting
of HGB other than the legal subjects stipulated in Article 36 of the BAL, in which
a Circular is not included in the regulating legal product. In addition, based on
the validity of the Circular Letter of the Minister of ATR / KBPN Number 2 / SE-
HT.02.01 / VI / 2019 does not meet the philosophical and sociological elements,
philosophically the Circular Letter of the Minister of ATR / KBPN Number 2 / SE-
HT.02.01 / VI / 2019 does not clarify the norms above which are not yet clear
and sociologically namely the purpose of the Circular Letter of the Minister of
ATR / KBPN Number 2 / SE-HT.02.
Minister of ATR / KBPN Circular Letter Number 2 / SE-HT.02.01 / VI /
2019 concerning Granting of Building Use Rights in the opinion of the author if
implemented is not strong enough as the basis of the Alliance of Partnerships to
obtain HGB considering the nature of the circular letter is only a policy
(beleidsregel) not as a legal norm, so if it is not carried out by the Heads of
Regional Offices of the National Land Agency there will be no sanctions that can
be given.

Position of the Allies in the Military Alliance with the Application of the
Circular of the Minister of Agrarian Affairs and Spatial Planning / Head
of the National Land Agency Number 2 / SE-HT.02.01 / VI / 2019
concerning the Granting of Building Use Rights for the Military Alliance
(CV)
Allies in the Alliance of Commandments as already discussed are divided
into two namely:
1). Complementary allies or active allies which, as the management of
the company, carry out all the affairs of the company and are
entitled to enter into agreements with third parties, meaning that all
company policies are carried out by active allies. Active allies are
often also called power companies or management executives, but
the meaning remains the same, these allies are also fully
responsible for the running of the company, including responsibility
for debts and debts (personal assets), spelled out also in Article 18
of the Commercial Law Code
2). Allied Commandments or passive allies who do not work for
companies are allies that only include capital in the alliance. If the
company suffers from losses, they are only responsible for the
capital included and likewise if the profit, their money is limited
depending on the capital they provide. The status of the Allied
Commandant can be likened to a person who entrusts capital to a
company, who only waits for a profit inbrengthat is included, and
 does not interfere in the management, business, or business
activities of the company. This ally is often also referred to as the
silent company. The legal status of a limited partner can be likened
to a person who lends or invests in a company and it is expected
that the investment is the result of profits from the loaned or
invested capital.
The position of the allies in the Military Alliance after the enactment of the
Minister Circular Letter ATR / KBPN Number 2 / SE-HT.02.01 / VI / 2019
concerning the Granting of Building Use Rights for the Military Alliance may
change from what was originally the military allies turned into complementary
allies if it represented the Military Alliance. in the application for the Right to
Build, because the limited partnership does not have the right to arrange
alliances with third parties in accordance with Article 20 paragraph (2) of the
Indonesian Criminal Code which stipulates that the limited allies do not
participate in the management or control of the limited partnership or work
affairs because the limited allies or limited allies responsible for the capital paid
up.Therefore, if the provisions of Article 20 paragraph (2) of the KUHD are
violated, the limited allies will be jointly responsible as the limited allies as
regulated in Article 21 of the KUHD.
Legal liability for agreements made with third parties is also an aspect
that determines the legal status of a business entity. In a limited partnership
which has the right to administer and represent the alliance, both inside and
outside the court, is a complementary ally or executive ally. Agreements with
third parties made in the course of carrying out the limited partnership business
activities are signed by complementary allies, and complementary allies are fully
responsible jointly to their personal property for the commitments made. Unlike
the case with limited allied partners in the management of limited partnership
and only capital in the form of money,
If there is a loss on an agreement made with a third party, the third party
may file a claim for compensation to the limited partnership of the assets of the
partnership and if the limited partnership assets do not cover the settlement of
obligations, then the claim for compensation can also be made against the
personal property of the allied complementary who did the engagement. The
responsibilities of allies in limited partnership, especially the responsibilities of
complementary allies, determine the legal status of the limited partnership which
qualifies as a legal entity separate from its allies.
The implementation of the granting of the Right to Build on the position
of the allies by being registered in the name of the allies or one of the allies in a
limited partnership experiences obstacles, especially in the matter of the portion
of the ownership of the allies in the limited partnership and the distribution of
profits among the allies, bearing in mind there are 2 (two) ) allies in a limited
partnership. The allies' ownership of limited partnership will depend on the
amount of income they make and over time will be influenced by the division of
roles between the limited allies and complementary allies. This will have an effect
if there are allies who decide to leave or at the time of the dissolution of the
limited partnership will find a problem related to how much part is owned by the
allies against the HGB,
 In addition to the issue of ownership, profit sharing between allies in a
limited partnership will affect ownership of the HGB which is the joint property of
the partnership. Distribution of profits in a limited partnership can be agreed by
the allies or follow the comparison of the amount of income into the partnership.
However, if it is not agreed upon and follows a comparison of the amount of
income it will cause imbalances, especially in the complementary allies or
management who only give their power or expertise into the alliance and get the
smallest share of profits in accordance with Article 1633 of the Civil Code, while
the complementary allies will fully responsible up to his personal property for an
agreement made by a limited partnership.
4. CONCLUSION

1 The Existence of a Circular of the Minister of Agrarian and Spatial

Planning / Head of the National Land Agency Number 2 / SE-
HT.02.01 / VI / 2019 concerning the Granting of Concession Rights for
Building Partnership in the Indonesian legislative hierarchy namely
Circular Letters are not included in the legislation hierarchy other than
that the provisions of this Circular Letter are not clear because based
on the nomenclature, the Right to Build is granted to the Military
Alliance (CV), but the content in the Circular mentions allies who
register the Right to Build and on behalf of the allies in the Military
Alliance. So there is a blurring of norms in this Circular.
2 The position of the allies in the Military Alliance (CV) with the
enactment of the Minister Circular Letter ATR / KBPN Number 2 / SE-
HT.02.01 / VI / 2019 concerning the Granting of Building Use Rights
for the Military Alliance (Commanditaire Vennootschap) can change the
position of the Military Alliance allies in the Military Alliance if the
provisions of Number 5 letter b stated in the Circular are carried out by
limited partners in which the contents of Number 5 letter b state that
the limited partners are entitled to submit HGB applications as
representatives of the Alliance of Partnership (CV)

REFRENCE
Boedi Harsono, 2008, Indonesian Agrarian Law History of the Establishment of the Basic
Agrarian Law, Content and Implementation Volume 1 National Land Law,
Djambat, Jakarta
____________, 1997, Indonesian Agrarian Law History of the Establishment of the Basic
Agrarian Law, Contents and Implementation, Djambat, Jakarta.
Philipus M. Hadjon, 2005, Introduction to Indonesian Administrative Law, Gadjah Mada
University Press, Yogyakarta.