Asset Transfer of Subsidiary of PT ASKES (Persero) and Its Implications for the Utility of Participant Health Security

This research aims to learn about PT AJII transformation process as well as the implications of the transfer concerning  service delivery to the National Health Insurance beneficiary. This is a normative empirical research, analyzing provision of the prevailing laws, legal principles and of the  practice by carrying out library and field research. Informants of the research were the Primary Commissioner of PT AJII, who acted as internal supervisor of the transfer, member of Social Security Ageny Bodies, (BPJS) and experts of social security who provided information and solution about the problems researched. The data obtained were analyzed by using qualitative method. Research result indicated that 80 percent shares of PT AJII were acquiesced, resulting in a transfer of control toward the company. The transfer process was problematic, dilemmatic, and potentially illegal. In addition to the three different legal provisions involved, the transfer also had to comply with both the public interest, that was the stakeholder participants, and the private interests, (shareholder of PT AJII). There was a possibility of illegality. It was on 23 of December 2013 that the transfer process of PT AJII was still in the stage of agreement signing, while the whole process had to end before 1 January 2014. This is in accordance with article 60 paragraph (3) of BPJS Law, that on 1 January 2014 PT Askes was no longer exist. All legal acts on behalf of PT Askes, including the transfer of its subsidiary company, remain intolerate because the management of PT Askes had become the management of BPJS. Additionally, it was also found that the transfer could have an implication to the increase of the service capacity of BPJS and the increase of utility for the participants.

In accordance with article 58, point b BPJS Regulation, the Board of Directors and Commissioner of PT Askes are in charge of supervising the transfer of assets of PT Askes including to transfer a subsidiary company. 1 This subsidiary company of PT Askes is obviously PT Asuransi Jiwa Inhealth Indonesia (AJII Ltd.). AJII Ltd.has been engaging in life insurances for more than 4 years, with Inhealth Manage Care and Inhealth Indemnity as its best products.
PT Askes (BPJS Kesehatan and PT AJII have different legal provision in terms of their legal provisions for public corporate company, State Owned Company) (UU BUMN), and limited liability company. These differences in legal provision indicate differences in company's orientation, which may cause conflict of interests and legal problems during the transfer of assets process. PT AJII is an independent legal entity that is a subject to article 102 paragraph (1) of Law No. 40 of 2007 on Ltd., which requires the board of directors to seek approvals from Shareholders General Meeting (RUPS) in transferring company's assets. 2 Additionally, a state-owned organis also bound to fiduciary duty principle to make decisions that are not in conflict with the interests of stakeholders,i.e. shareholders, employees, creditors, and local community, which are protected by the law.
The previously described situation compelled the researcher to learn how the transfer of assets of PT Askes, into BPJS Kesehatan, by conducting a study entitled "THE TRANSFER OF A SUBSIDIARYOF PT ASKESTOWARDS BPJS KESEHATAN AND ITS IMPLICATIONS TO THE BENEFICIARY".

RESEARCH METHODS
This study is a normative empirical research, analyzing both the provision of the prevailing regulation, principles of law and the reality of practice in the field through both library and field research. The library research was focused on the normative study of primary, secondary, and tertiary laws. 4 The field research was conducted to obtain data from informants including Mr Gufron Mukti Ali, Commissioner of AJII Ltd.; Mr. Timoer Sutanto, Member of the National Social Security Council (Jamsosnas), and Mr. AA Oka Mahendra, a statutory consultant for social security. The study was conducted in Jakarta .
This study used non-probability sampling technique with purposive sampling method. Data collectingwas done throughboth direct and phone interviews, abiding by the interview guide. Data were analyzed by using qualitative data analysis.

The Implementation of the Transfer of PT Askes' Subsidiary Company to BPJS Kesehatan
There are three important aspects to the transfer of PT Askes subsidiary company to BPJS Kesehatan. Those aspects are the relationship between AJII Ltd. and PT Askes within a group affiliated company, the implementation of principles of law, and the transfer methods.

1) The Relationship between AJII Ltd. and PT
Askes within a group company AJII Ltd. and PT Askes are within the construct of a group company. This relationship embodies three characteristics that both companies are independent legal entities, having control from the parent company, and single economic entity.
Both AJII Ltd. and PT Askes are legally independent and are led by PT Askes as the parent company.Both companies have the legal status as a legal entity and, therefore, in a civil relationship, both are independent and are subjects to the company law.
As a subsidiary of PT Askes, AJII Ltd.is a subsidiary of a state-owned company (BUMN

2) The Implementation of Lex Specialis Derogat Legi Generali Principle of Law
The transfer of AJII Ltd. involves three different legal provisions in which each is representing different interest, and thus there is a potential for law contention.
To avoid conflict, the implementation of principlesof law is required.
The transfer of AJII Ltd. must not be in conflict with the principles of law, particularly the principle of lex specialis derogat legi generali. Therefore, an understanding of lex specialis derogat legi generali principle of law is required.
A general principle of law is not a concrete law. It underlies regulations, contained in a legal system and manifested in legislations and positive law such as legal verdicts, and is observable by inquiriesfor common traits in a concrete law. 7 Thus, according to Sudikno Mertokusumo, a principle of law is not a concrete law, but the basic underlying rule that are general or abstract.
A principle of law is an essential and fundamental element in law. Sutjipto Rahardjo said that principle of law is the "heart" of law. Hence, the principle of law is the most extensive foundation for generating regulation. This means that the regulations can eventually be traced back to this principle. In addition to being a foundation of law, the principle of law is also the ratio legis of regulations. 8 To deal with law contentions in the implementation of the transfer of AJII Ltd, it is necessary to apply the lex specialis derogat legi generali principle of law. According to Bagir Manan, there are three principles in the implementation of the principle of law, namely 9 : 1. Regulations found in the common law still apply, unless specifically stipulated in the specific regulations; 2. Regulations from a lex specialis must be equal in degree with regulations from a lex generalis (legislation with legislation); 3. Regulations from a lex specialis must be in the same legal environment (regime) asany lex specialis. Both Commercial Code (KUH Dagang) and Civil Code (KUH Perdata) are listed under the civil law environment.
According to Bagir Manan, the principle of lex specialis is one of the implementation of principles of positive law, which is done by the judiciary also in order to 9 : 1. Carry out the law as a function of service or supervising the society, such as licensing, endorsement, expression of no objection, etc. ; and 2. Maintain the law when there is a violation.
Thus, the implementation of the principle of lex specialis legi generali derogat includes three scopes, the scope of application of the law in society, the scope of justice, and the scope legal defense.
Meanwhile, according to C. Waaldijk, the principle of lex specialis means that judicial enforcement (juridische gelding) of regulations of the same degree (gelijke order) complements each other. However, if the regulations, which are equally the same in degree, are conflicting (meth elkaar in strijd zijn), then judges need to decide which regulation to be applied. If there is no settlement to the conflicting regulations, then judges are given the freedom to choose by adhering to two unwritten principles (regels ongeschereven), namely: 1. Lex derogat legi generali (specific regulations dismiss the general ones), and 2. Lex posterior derogat legi anteriori (new regulations dismiss the old ones).
Based on the two unwritten principles of law, the legislation may leave it to the judge to decide which of the conflicting regulations to be applied. 10

a) The Implementation of the Principle of Lex Specialis Derogat Legi Generali within the transfer of AJII Ltd. as a Subsidiary of PT Askes
As previously explained, the transformation of AJII Ltd. cannot be separated from the dissolution of PT Askes. Therefore, the implementation of the principles of law covers both the dissolution of PT Askes and the transformation of AJII Ltd. Thus, based on the principle of lex specialis legi generali derogat the regulations are to be disregarded, so that the termination of PT Askes can be implemented without bankruptcy assertion and liquidation proceedings or without stipulation from a Government Regulation.

b) The Implementation of the Principle of Lex Specialis DerogatLegi Generali within the transfer of AJII Ltd. as a Subsidiary of PT Askes
The transformation of AJII Ltd. is a law event arising as an impact of the implementation of Article 60 paragraph (3)

Transfer Method
According to the principles of law, the company relationship, and the order of UU BPJS, the board of directors and commissioner of PT Askes have full authority to carry out the transfer of AJII Ltd. To that end, there are two methods to facilitate the transfer, namely selling AJII Ltd. or transferring it as a subsidiary of BPJS Kesehatan.
According to Ali Gufron Mukti, to sell AJII Ltd. was the option taken. 6  The transfer of assets by selling mechanism is not specifically regulated in UU BPJS, therefore, the transfer needs to refer to UU PT. UU PT regulates that the mechanism may be done in two ways, namely taking over by the Board of Directors of the Company, and by direct shareholders.
The takeover by the board of directors cannot be implemented, as previously explained, since the directors of AJII Ltd. do not have there quired fiduciary duty to implement the intended takeover. Therefore, the takeover can only be done by direct shareholders.
However, UU BPJS impose that the takeover by direct shareholder through the board of directors and commissioner of PT Askes must be done before January 1 st 2014. Regarding this deadline, A.A. Oka Mahendra, Expert Laws and Regulations in the Field of Social Security, Stating that The takeover must be done prior to the date, because after January 1 st 2014, as is instructed in Article 60 paragraph (3) of UU BPJS, PT Askes has been disbanded, so that the board of directors and commissioner of PT Askes can no longer perform legal acts on behalf of PT Askes.
On the other hand, the decision to sell AJII Ltd., is contrary to Article 142, paragraph (2) letter b, of UU PT. Based on this regulation, in the case of termination of PT Askes, the company can not perform legal acts unless required in order to settle the affairs of the company regarding the liquidation.

The Implications of Transfer for the Benefits of Its Participants
BPJS Kesehatan manages social security assets consisting of the assets of BPJS Kesehatan and the fund assets of Health Insurance. BPJS Kesehatan is required to make distinctions of the two assets.
According to Timoer Sutanto, a council member of Jamsosnas, AJII Ltd. should be transferred as an asset of BPJS Kesehatan. This is in line with Government Regulation article 12 paragraph (3) 11 Therefore, the implications of transfer are related also to sustain the implementation of national health insurance, in the event of asset liquidity problems of the Health Social Security Fund.
The following scheme describes the implications of assets transfer for the benefit of BPJS Kesehatan participants: