The Position of the Fidei Commis in the Division of Inheritance of Indonesian Companies’ Shares

Abstract

The issues in this research stem from the prohibition of the fidei commissum practice in the Western Civil Code, although there are various exceptions in certain cases. The concrete normative legal regulation prohibits fidei commissum, but it is still widely used in practice. This research is particularly interesting to be examined from a normative-philosophical perspective. The practical condition of fidei commissum does not reflect the values of justice and legal certainty, thus rendering the testament under fidei commissum in this Deed of Gift legally invalid. Fidei commissum is a closed, systematic, and individualistic legal system which deviates from the principles of justice. Similarly, with regards to the inheritance of company shares, it is regulated according to the Western Civil Code, but its transfer is specifically governed by Law No. 40 of 2007 concerning Limited Liability Companies.