We have known the existence of the Foundation institution since the Dutch East Indies government which at that time we knew as "Stichting", but at that time there were no clear provisions regarding the foundation, especially regarding its legal entity status. At that time the foundation was used by its founders as a vehicle for social activities [1]. Indonesia already has a law that regulates foundations, namely Law Number 16 of 2001 concerning Foundations, which took effect on August 16, 2002. Furthermore, on October 6, 2004 through the State Gazette of the Republic of Indonesia Year 2004 Number 115, Law Number 28 was ratified. 2004 concerning Amendments to Law Number 16 Year 2001 concerning Foundations [2]. The purpose of the foundation is limited, namely social, religious and humanitarian. As explained in Article 1 paragraph (1) of Law Number 16 of 2001 concerning Foundations that:

"Foundation is a legal entity consisting of assets that are separated and intended to achieve certain goals and objectives in the social, humanitarian and religious fields that do not have members" Foundations as legal entities have a distinctive character. This type of legal entity was born because of a legal act, namely the separation of a number of assets from the founder for a specific purpose. Unlike other legal entities that aim to make profit, a foundation is a legal entity created for social, religious or humanitarian purposes.

With this goal made, they do not expect profit from the activities they do. In order that the objectives of the foundation can be achieved in accordance with the purpose of its establishment in Law Number 16 of 2001 concerning Foundations, 3 (three) foundation organs have been regulated, namely supervisors, administrators and supervisors who are responsible and authorized in managing the foundation so that the foundation's objectives are achieved in accordance with the purpose of its establishment.

The Foundation Law adheres to the non-profit principle, namely not seeking profit. Existing capital is not processed for profit, but to carry out an activity that is beneficial to the community [3]. Elucidation of Article 3 of Law Number 16 of 2001 concerning Foundations in this article is in accordance with the aims and objectives of Foundations that are social, religious and humanitarian in nature so that someone who becomes a member of the Trustees, Management and Supervisors of Foundations must work voluntarily without receiving a salary.

Article 3 paragraph (2) prohibits that a foundation may not share the results of its business activities with the Trustees, Management and Supervisors, so that members of the foundation organs do not take advantage of the opportunity to seek personal gain from the company's profits.

In addition, there is a prohibition regarding the transfer of foundation assets in Article 5 paragraph (1), namely: that the assets of the foundation, whether in the form of money, goods, or other assets obtained by the foundation based on the Foundation Law, are prohibited from being transferred or distributed directly either in the form of salaries, wages, honorarium, or other forms that can be valued in money to the Trustees, administrators and supervisors [4]. 

Based on Article 5 of the Foundation Law, there is no provision regarding the prohibition of transferring the assets of the Foundation to other parties (especially other parties who have an interest in the Foundation), the prohibition of transferring the assets of the Foundation to other parties, in principle this may be done. However, the transfer of the foundation's assets to other parties, besides having to pay attention to the formalities stipulated in the Foundation Law and the Foundation's Articles of Association, for example, must obtain approval from the Board of Trustees, besides that it must also pay attention to the principles and provisions contained in the Law. -Law on Foundations and Articles of Association.

From the problems mentioned above, the authors are interested in studying in general about these problems in a study entitled "Legal Provisions Regarding the Transfer of Foundation Assets". Based on the title, the writer examines and analyzes one problem formulation, namely: What are the legal provisions regarding the transfer of foundation assets based on legal procedures and the Foundation Act?

This research is a normative legal research. Legal research is a process to find the rule of law, as well as legal doctrines in order to answer the legal issues faced [5]. The approach used in this study is the approach of law (Statute Approach) and theoretical approaches (Teorical Approach [6]). This type of research is normative juridical. Normative legal research is carried out by studying the documents contained in the library. This kind of research includes documentary research, also known as library research. Legal research that is normative uses types and secondary data as the main data. Secondary data is data obtained not directly from the object under study.

The secondary data that the author uses in this study are:

• Primary Legal Materials, namely: Relevant statutory regulations, including: The Civil Code, Law of the Republic of Indonesia Number 16 of 2001 concerning Foundations and Law Number 28 of 2004 concerning Amendments to Law Number 16 2001 concerning the Foundation

• Secondary Legal Materials, namely: Materials obtained from legal books, legal journals, legal articles, legal papers and other information from electronic media and print media

• Tertiary Legal Materials, namely: Various materials that provide instructions, directions and explanations about primary legal materials and secondary legal materials such as: legal dictionaries, legal encyclopedias and other materials related to law as a complement to this writing [7] 

The data collection technique used in this research is a literature study, namely data collection by reading the legislation, official documents and literatures that are closely related to the problems discussed based on secondary data. From the data then analyzed and formulated as supporting data in this study.

With the enactment of the Law on Foundations, namely Law Number 16 of 2001 concerning Foundations and then Law Number 28 of 2004 concerning Foundations concerning amendments to Law Number 16 of 2001, it is possible to provide a correct understanding of foundations, ensure legal certainty and order and restore the function of the foundation as a legal institution in order to achieve certain goals and objectives in the social, religious and humanitarian fields.

As explained in Article 1 paragraph 1 of the Foundation Law that:

"Foundation is a legal entity consisting of assets that are separated and intended to achieve certain goals in the social, religious and humanitarian fields that do not have members".

By not having members, it means that the foundation is not owned by anyone. This is different from a limited liability company (PT). Limited liability companies are owned by shareholders; Cooperatives are owned by their members, as are other associations. Foundations as independent legal entities can be run as legal subjects by their management, supervisors and supervisors in accordance with their authority to realize the aims, objectives and activities of the foundation for the benefit of the community [8]. 

From the provisions regarding the foundation, we find that the article clearly points to the characteristics of the foundation. The characteristics of the foundation that are clearly visible in the article are:

• Foundation as a legal entity

• The foundation has its own wealth

• The foundation has goals in the social and religious fields

• The Foundation has no members

The main element of the foundation is the assets that are separated from the wealth of the founder. The legal act of separating contains the meaning of volunteerism from the founder to release a wealth. With this act, the founder as well as his heirs, are no longer entitled to the separated and released assets. The separated wealth then changed its status as a legal entity, namely a foundation. Thus, no person or entity has the status as the owner of a foundation [9]. This has been regulated in Article 9 paragraph (1) of Law Number 16 of 2001 concerning Foundations:

"The foundation is founded by one or more people by separating part of the founder's assets as initial wealth"

When the prospective founder establishes a Foundation by signing the deed of establishment before a Notary, he is obliged to separate his assets which are used as the initial assets of the established Foundation. Article 6 Government Regulation Number 63 of 2008 at a minimum of Rp. 10,000,000 (ten million rupiah) for Foundations established by Indonesian Citizens, or Indonesian legal entities and Rp. 100,000,000 (one hundred million rupiah) for Foundations established by foreign nationals or established by Indonesian citizens/Indonesian legal entities together with foreigners/foreign legal entities.

The assets of the Foundation, except those originating from separated assets which are the initial assets of the Foundation, can also be obtained from:

• Non-binding donations or assistance

• Waqf

• Grant

• Will Grants

• Other gains that do not conflict with the Foundation's Articles of Association and/or applicable laws and regulations

The assets of the Foundation obtained from these various sources are used solely to achieve the aims and objectives of the Foundation, so that it is no longer possible for such wealth to be distributed to the Organs of the Foundation. It is regulated in Article 5 paragraph (1) of the Foundation Law.

The assets of the foundation which are separated from the founders are in the form of money or goods, so it is necessary to know in Article 37 paragraph (1) of the Foundation Law that the management is not authorized to:

• Bind the foundation as debt guarantor

• Transferring the assets of the Foundation except with the approval of the Trustees

• Encumber the Foundation's assets for the benefit of other parties

Diversion comes from the basic word "transfer" which means to move, replace, exchange and change. While the word transfer is a verb that has a meaning, namely a process, method, act of transferring, transferring, replacing, exchanging and changing. So it can be said that the transfer of foundation wealth is a process, method, deed, transfer, transfer, replace, exchange and change the wealth in the form of goods or money of a foundation.

There are several kinds of ways obtain the right material, which is as follows [10]:

• By acknowledgment, that is, an object that has no owner, is then obtained and recognized by the person who got it as his own. The person who is authorized to have this property has the right to the object. For example, catching fish in the sea, hunting deer in the forest and so on

• By discovery, i.e. objects belonging to other people that are separated from their control, for example because they fall on the road, or because they are lost due to floods, are then found by someone, while he does not know who the owner is

• By surrender, namely material rights obtained by way of submission based on rights, for example buying and selling, leasing, grants, inheritance. With the submission that the right material on the object passed to obtaining rights

• By way of expiration, the right material is obtained by way of expiration (the past). Expiration movable and movable and immovable not sama.bagi who controls the object moves for example with how to find in the street, the right belongs to is obtained after a past time three years since he mastered the objects move it. As for immovable, daluwarsanya is in the right base for 20 years, dandalam things not their pedestal rights for 30 years. After the past 20 years, people who control the immovable property rights

• With inheritance, the right material obtained by inheritance under inheritance laws berlaku.ada three kinds of inheritance law which applies, namely hukumwaris customs, laws of inheritance Islam and the legal heir of the Civil Code

• By way of creation, namely the creation of new items that did not exist before, for example copyright on a painting, song, book and so on

• By way of follow-up or derivative, the plants that are on the ground, are declared as follow-up objects from the land, the person who buys the land is also entitled to the plants on it

Property rights are the most important rights compared with the rights of other material, for which the right can be enjoyed by fully and mastered by sebebas-freely against the object. With such owner objects to isolate (sell, donate, exchanging, donating), burdening (pledge, fiduciary), rent and so on. In short, you can freely take legal action against the object. In addition the owner can perform deeds that material to the object, for example picking the fruit, use it, keep it, maintain even damage it. Property rights are rights that cannot be contested by anyone, either other people who are not owners or by legislators or authorities, where they cannot arbitrarily limit property rights, but there must be compensation for losses and must meet the conditions specified.

Every act of legal civil who intends to transfer title, should meet the requirements as outlined in Article 584 of the Civil Code. In these provisions it can be seen that prior to a delivery of material, with the purpose to carry out the transfer of the right to belong to do to be there first to become an event of civil aiming to transfer property rights, which can be embodied in the form of sale, exchange or grants. The delivery of an item includes everything that becomes its equipment and is intended for permanent use, along with proof of ownership, if any and this provision is contained in Article 1428 of the Civil Code.

Law Number 16 of 2001 in conjunction with Law Number 28 of 2004 concerning Foundations provides provisions that regulate restrictions on the transfer of assets or assets of the Foundation which must be obeyed by the Foundation that will transfer its assets. Law Number 16 of 2001 in conjunction with Law Number 28 of 2004 concerning Foundations provides provisions that regulate restrictions on the transfer of assets or assets of the Foundation which must be obeyed by the Foundation that will transfer its assets.

The transfer of the assets of the Foundation can be carried out based on legal actions in the form of buying and selling, exchanging, grants, participation with company capital, giving by will, auction, waqf and other acts of transfer of rights. The party who transfers the assets of the Foundation is a person who is legally capable and has the authority to transfer the assets of the Foundation. So that in the case of the transfer of the assets of the foundation, it must pay attention to the provisions stipulated in the Law on Foundations, in principle based on the provisions stipulated in the Law on Foundations.

Only a part of the total assets of the foundation are allowed to be transferred. If all assets or all assets are transferred, then the foundation is dissolved and must be based on the decision of the Board of Trustees Meeting and the executor must be an organ of the foundation. Based on the Legal Entity Theory, the transfer must go through the organs of the foundation. Based on the Authority Theory, the organs of the foundation are not authorized to transfer the assets of the foundation solely for personal interests without the knowledge and without the consent of other organs. This should not be done because it violates legal norms and also violates moral norms.

The transfer of assets or assets of the foundation can be carried out based on legal actions in the form of buying and selling, exchanging, grants, participation with company capital, granting by will, auctions, waqf and other rights transfer actions. However, the wealth of the foundation can also come from waqf. So, before selling the land of foundation assets, it must be seen in advance whether the assets are assets originating from waqf assets or not. If the assets are foundation assets originating from waqf, then the provisions regarding waqf apply, which has been explained in Article 40 of Law Number 41 of 2004 concerning Waqf, that waqf assets that have been waqf are prohibited: 

• Pledged

• Confiscated

• Granted

• For sale

• Inherited

• Exchanged

• Transferred in the form of other rights transfers.

Regarding the provisions in Article 40 of the Waqf Law, there are exceptions in Article 41 paragraphs (1), (2) and (3) of the Waqf Law, namely: what can be exchanged for waqf objects if the waqf assets that have been waqf are used for the public interest in accordance with the general spatial plan (RUTR) based on the provisions of the applicable laws and regulations and does not conflict with sharia. This can only be done after obtaining written permission from the Minister of Religion with the approval of the Indonesian Waqf Board. Waqf assets whose status has been changed must be exchanged for assets whose benefits and exchange value are at least the same as the original waqf assets. If there is a violation of Article 40 of the Waqf Law, it can be punished with a maximum imprisonment of 5 (five) years and/or a maximum fine of Rp. 500,000,000.00 (five hundred million rupiah).  

Other provisions regarding the transfer of foundation assets can only be justified according to law if the foundation's aims and objectives are not achieved, thus the Foundation is appropriate/reasonable/reasonable/rational if later dissolved by members of the Foundation's organs (Board of Trustees) or dissolves itself, as explained in Article 62 of the Law of the Republic of Indonesia Number 16 of 2001 concerning Foundations that a Foundation is dissolved because: 

• The period specified in the Articles of Association expires

• The Foundation's objectives set out in the Articles of Association have been achieved or not achieved

• Court decisions that have obtained permanent legal force are based on the following reasons

• Foundation violates public order and decency

• Unable to pay its debts after being declared bankrupt; or

• The Foundation's assets are not sufficient to pay off its debts after the bankruptcy declaration is revoked.

Provisions on the Transfer of Wealth of a Foundation that is approaching disbandment (because its aims and objectives have not been achieved) which means that the Foundation must be dissolved later if the Statement of Dissolution of the Foundation is made by the Supervisory Board, the liquidator is appointed by the Supervisory Board, but if the Foundation is dissolved by the Court then the one who appoints and appoint a liquidator is the Court.

The liquidator then carries out his duties, announcing in the newspapers that he is rational and summoning all of the Foundation's Creditors. After the Liquidator's Liability for the assets of the Foundation is completed, then there are still assets of the Foundation, then the remaining assets of the Foundation are called the remainder of the liquidation proceeds of the Foundation.

Foundation assets which are the remaining results of the Liquidation of a Foundation, can only be justified by law to be given or transferred to parties as regulated in Article 68 of Law Number 28 of 2004 concerning Amendments to Law Number 16 of 2001 concerning Foundations that:

• The remaining assets resulting from the liquidation shall be handed over to another Foundation which has the same activities as the disbanded Foundation

• The remaining assets resulting from the liquidation as referred to in paragraph (1) may be transferred to another legal entity that has the same activities as the disbanded Foundation, if this is regulated in the Law concerning the legal entity

• In the event that the remaining assets resulting from the liquidation are not handed over to another Foundation or to another legal entity as referred to in paragraphs (1) and (2), the assets are handed over to the State and their use is carried out in accordance with the activities of the disbanded Foundation

In the event that the foundation is not close to disbanding or cannot achieve its aims and objectives and does not deserve to be dissolved, it is not allowed to be transferred. According to Article 62 of the Foundation Law, a foundation is dissolved because:

• The period specified in the Articles of Association ends

• The foundation's objectives set out in the Articles of Association have been achieved or not achieved

• Court decisions that have obtained permanent law are based on the following reasons

• Foundation violates public order and decency

• Unable to pay its debts after being declared bankrupt or

• The assets of the foundation are not sufficient to pay off its debts after the bankruptcy declaration is revoked

It is legally justifiable to cancel, even if the deed has been approved or has been notified to the ministry of law and human rights. The cancellation procedure is by way of the parties who originally made the deed appear before the notary who made the deed to declare the cancellation of the notarial deed, then in the case that the notarial deed which is a replacement deed of the canceled deed requires approval from the ministry of law and human rights, it must also requested approval again to the Ministry of Law and Human Rights of the Republic of Indonesia.

Transfer of Foundation Assets or Assets that may be transferred to other Foundations solely for the benefit of the Foundation and as a benchmark are all Foundation Organs or all those with an interest in the Foundation, then they must fulfill 3 (three) Principles, namely Transparency, Accountability and Publicity.

The application of the Principles of Transparency, Accountability and Publicity is very important in managing a Foundation because the Foundation's organs consisting of Trustees, Management and Supervisors must be more responsible in carrying out their obligations to explain how the realization of the authority they have obtained and be open in all reports containing notes or writings. Containing information regarding rights and obligations as well as other matters relating to the business activities of the Foundation or financial documents of the Foundation in the form of evidence of bookkeeping and supporting data for financial administration. Based on the principles of accountability and transparency contained in the Foundation Law, public accountants who have the obligation to audit the financial statements of the Foundation must carry out their obligations with full responsibility, so that the assets owned by the foundation in a certain amount can be known by the public, especially related parties with a Foundation.

Only a part of the total assets of the foundation are allowed to be transferred. If all assets or all assets are transferred, the foundation is dissolved. Must be based on the decision of the Board of Trustees Meeting and the implementer must be an organ of the foundation. The transfer of the assets of the Foundation can be carried out based on legal actions in the form of buying and selling, exchanging, grants, participation with company capital, giving by will, auction, waqf and other acts of transfer of rights. If the assets are foundation assets originating from waqf, then the provisions regarding waqf shall apply, which has been explained in Article 40 of Law Number 41 of 2004 concerning Waqf. Other provisions regarding the transfer of assets of a foundation can only be justified according to law if the purpose and objectives of the foundation are not achieved as described in Article 62 of the Law of the Republic of Indonesia Number 16 of 2001 concerning Foundations. Article 68 of Law Number 28 of 2004 concerning Amendments to Law Number 16 of 2001 concerning Foundations states that the transfer of assets of a foundation can only be transferred in the event of the dissolution of the foundation to another foundation that has the same aims and objectives. Transfer of Foundation Assets or Wealth that may be transferred to another Foundation solely for the benefit of the Foundation and as a benchmark is all Foundation Organs or all those with an interest in the Foundation, then they must fulfill 3 (three) Principles, namely Transparency, Accountability and Publicity. In the process of transferring the assets of the foundation, it is hoped that all the organs of the foundation will pay attention to the provisions of the law, especially the Foundation Law, so as not to cause legal consequences that can harm the parties involved in the process of transferring the assets of the foundation. Notaries who are involved in the process of transferring foundation assets need to provide legal counseling regarding the process of transferring foundation assets in accordance with legal procedures.

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