ASPEK HUKUM KEGIATAN REKSA DANA

Abstract

Public Investment Fund is an alternative means of investment in the capital market and absolutely prospective for the public. But, for the last three years its activity is more dominated by the rapid growth and development of the so-called open-end collective investment agreement than the closed-end Public Investment Funds taking the form of limited liability company, particularly among the Investment Manager as players in the capital market. On the other side, Public Investment Fund is also purported to be a collective investment means which is favouring domestic investors, particularly small and medium investors that need both certainty and protection of their investment. What is reflected is that there are some legal aspects in the Public Investment Funds activity, mostly on the side of the Investment Manager as a company providing management service for securities portfolio or investment of its customers. Therefore, it is important to conduct research on these legal aspects to reveal the reasons why -- particularly among the Investment Manager -- open-end Public Investment Funds is more developed than its closed-end counterpart. It is also necessary to conduct research on the institutional character and the activities of Public Investment Fund as a business construction, the control of the government over the activities of Public Investment Funds to ensure protection of the public investors interest, and the system of responsibility of the Investment Manager to the investors in Public Investment Fund. In order to identify and to understand the above mentioned problems, this descriptive-analytical research is performed through juridical-normative and sociological approach by focusing on secondary data which is supported by primary data. Data of this research is gathered from BAPEPAM, some Investment Managers, some Representatives of Investment Manager, APEI (Indonesian Association of Securities Companies), and PIPM Semarang. In gathering data, the techniques employed in this research are document analysis, questionaire, and interview. Next, qualitative analysis is applied to the data gathered. The facts of the field resarch reveal that the growth and development of Public Investment Funds in Indonesia is more influenced by the role and participation of the Investment Managers rather than by the degree of knowledge and understanding on the side of public investors, as may be seen from the fact that the development in the open-end Public Investment Funds which is not necessarily corelated to the preference of public investors to choose Public Investment Funds product. Legal obstacles that make closed-end Public Investment Fund is less-developed than open-end Public Investment Funds among the Investment Managers are in fact closely related to the legal procedure of establishment, flexibility in management, support from the government -- particularly in term of taxation, and the marketability of the product of open-end Public Investment Funds. As a business stucture, the characteristic of the institution and activity of Public Investment Funds lies more on its purpose to protect the interest of public investors in investment portfolio than on the juridical structure of company organization. Public Investment Funds institution in the form of limited liability company is cathegories as 'PT Terbuka' with specialities in the capital structure, the system/structure in managing the company's assets and the rights of the share-holders. Public Investment Funds in the formof collective investment contrat basically falls within the cathegory of business entities which are established by a particular contract containing legal relationship of providing service in management and depository of collective investment assets for the interest of investors as a single unit. In term of activity, both kind of Public Investment Funds share the same goals in giving investment benefit (economical rights) coming from securities portfolio, -- which is managed by the Investment Manager --, in a diversified way to the beneficiary, that is the share holders/participation unit holders in a particular form influenced by the purposes character of the formation of securities portfolio of the relevant Public Investment Funds. The control of BAPEPAM over the activities of Public Investment Funds to protect public investors is hampered by the purpose and interest on the government's part in stimulating the development of the quantity of Public Investment Funds industry. Consequently, the control is more focused on fostering Investment Manager as reflected from the whistleblowing nature of the legal sanctions, from the compliance request, and the from the refusal to approve the request of dismissing Public Investment Funds by Investment Manager on the ground that Investment Manager is expected to participate in developing trust in the Public Investment Funds. The reponsibility system of Investment Manager as the manager of Public Investment Funds to the investor can be cathegorized as fiduciary duties, based on either the law or the management contract. As a consequence of the representative nature of the duties given, the authority of the Investment Manager is restrictied by good-faith in the transaction of the fund and the securities as the investment portfolio of the Public Investment Funds. There is also a mechanism in settling the transaction of the securities which falls within the authority and responsibility of the Custodian Bank so that interest of the investors is more protected. Although there is a principle that Investment Manager should be responsible for any damage caused by his mistake or negligence, the customer bears the investment risk on the reason that the action is within the boundary of the good-faith principle in the Public Investment Funds. Any dispute emerging from investment loss tend to be settled out of the court, that is by the Investment Manager's explanation to the investors, by the Investment Manager's compliance with BAPEPAM's rule and by the acceptance of the administrative sanction delivered by BAPEPAM.