جستجوی مقالات مرتبط با کلیدواژه « وثیقه » در نشریات گروه « علوم انسانی »

In the development process, in many cases, the adopted strategies do not have the necessary effect. The effectiveness of strategies depends on the full role of each of their constituent elements. In this research, an attempt is made to provide a clear picture of the vital role of an apparently non-determining component. By showing the important position of a legal element as a case study in the framework of economic strategy, the present research deals with the determining role of the elements in the absence of which the development process will be disrupted. "Collateral" is one of the very key tools in the process of granting bank facilities in order to provide capital. Failure to pay attention to the issue of collateral as a legal element in the course of economic development, which is a very small category and the second is considered a large issue, will often cause problems. It is very difficult to accept that such a small category can cause major disturbances in the development process. The current research tries to show that collateral as a legal element leaves serious effects in the flow of the economy.

The guarantor or guarantor is obligated to summon and deliver the defendant or the defendant. In the guaranty contract or bail contract, the guarantor or the guarantor undertakes to summon the defendant or the defendant, and in case of failure to fulfill this obligation, he undertakes to pay the bail or bail. The main question is, what is the basis and nature of the guarantor's or bailor's obligation to pay the deposit? Is this a result of the forced guarantee of the loss of property, or is it a result of contractual guarantee and responsibility, or is it due to the law, or does the nature or application of these contracts require such a requirement, considering that according to Article 746 of the Civil Code and Article 234 of the Criminal Procedure Law approved in 1392 with Subsequent amendments and additions, which exclude surety and bond in the event of the death of the guarantor or the guarantor, the guarantor's or the guarantor's obligation to summon the surety or the defendant against a non-financial obligation and standing to a person, and only the authority of Cairo, including death or insanity, can void his obligation. he does. He undertakes to pay the debt of the debtor or the convicted person to the defendant or the convicted person if he is unable to fulfill his original obligation. This obligation is a new obligation that arises as a result of the guarantor's or bailor's breach of contract.

Self-help sales take as a guarantee of Breach of Contract without going to court. This institution based on the legal functionalism of and the psychological view to law of contract, so that by reducing the cost and time of compensating the victim and monitoring based on exchange, apply effective enforcement. If the self-help institution is accepted, we can consider it among the authorities and not the functions of the actor, unless in the cases that explicitly foreseen by the legislator. This article is an effort with the aim of removing the ambiguity of the nature of self-help sales, examining the scope and functions of its use in contractual relations and finally determining the position of this subject in Iran's legal system. The result was that according to the existing regulations and the basis of self-help sales, and with the rejection of the opinion that supports the application of the self-help system in all cases, this entitycan be applied only in movable property and specified cases and cases that have been agreed upon. In iranian law, the closest subject to selling self-help is the theory of representation. One of the most important functions of the self-help subject is harm reduction and economic analysis of rights.  The results of the mentioned studies and researches in Iran's legal system have been examined and analyzed and it has been shown that due to the existence of the aforementioned benefits and the acceptance of this subject in the case law, the legislator should formulate regulations in order to determine its territory and position.

In article 774 of the civil code following the well-known opinion in fiqh, the void of the pledge of intangible assets has been specified. The important bases of the void of the pledge of intangible assets have been codified the inalienability of the seizure of the pledged intangible assets and the lack of providing trust and the failure of the payment or settlement of the debt. However, all these cases in fiqh have been questioned. In the legal system of Iran, many regulations have been enacted latter to the civil code that they have no consistency with the traditional rules of the pledge. Some of them have excluded the seizure of the pledged intangible assets from the provisions of the validity of the pledge and some others have recognized the definite nontangible assets such as credits and stocks of guarantee are collateralizable. On the other side, the voidance of the pledge of intangible assets makes such assets to some extent go out of the economic cycle of the society and it causes losses in the business cycle and deprives the property’s owner from the complete benefit of his asset. All these factors make an endeavor for knowing intangible assets be necessary. There are five important approaches have been assessed in this paper which are: utilization of agreement with a no-name, utilization of the Agreement of Pledge utilization of transactions with the right of redemption, acceptance of the implied abrogation (implied appeal) of articles 774 and 772 of the civil code and their exclusion of jus cogens (compelling law -peremptory-).

The establish of a legal relationship between individuals, whether in the form of a contract or outside it, is inevitable. These legal relationships sometimes appear in the context of debt and claim. In order to guarantee and facilitate the collection of claims, Creditor may have received a security from a debtor in order to take advantage of those securities, in case of impossibility of collection of debts from debtor directly. However, sometimes, After the creation of collateral, basic debt may be the subject of a contract that can be named as a transition collateral contract. There are doubts about how the formation of these types of contracts have an effect on the securities of basic debt. Some believe that after concluding of transition collateral contracts, preceding securities of basic debt will be collapsed; However, others believe that the preceding securities of basic debt will be remain. For each of these views, there are some reasons. In general, the second view seems to be stronger. In this article, the author has tried to examine the reasons for each of the above views from an analytical point of view in order to explain the correct point of view.

The purpose of this article is to combat economic corruption in the legal system of the Islamic Republic of Iran and the status of enforcement of collateral. Today, tackling all kinds of economic corruption is one of the undeniable necessities of human life. In the legal system of the Islamic Republic of Iran, the issue of combating economic corruption is one of the basic necessities of the country's legal system. Hence, various rules have been envisaged in this field, one of which is the right of collateral. The main question of the research is that, in the legal system c. ا. What is the status of collateral in Iran and what effect does it have on economic corruption? The main hypothesis of the article is that the implementation of collateral reduces risk of corruption by reducing risk, changing risk, and disclosing debtors' information. The results show that in the Iranian legal system, collateral is only used as a basis for repaying a loan or fulfilling a contractual obligation, while collateral in the economy has various functions such as reducing risk, changing risk and disclosing debtors' information. It reduces economic corruption, which in a way leads to public peace and social trust. The method of this research is descriptive-analytical which has been collected through the study of documentary sources and libraries.

Depositing a property as collateral of the belonging to debtor in order to guarantee the creditor’s claim has been formed from the very beginning of the establishment on the basis of regulating the economic and social relations of individuals in society. Accordingly, in financial obligations, various types of securities have been established. However, security contracts with the same basic basis gradually prevailed, and taking into consideration the requirements of modern business, legislators adopted different procedures regarding security and it’s instances based on some laws, regulations, and instructions. However, all the different stances of the legislature have always been accompanied by a basis for securing and reassuring the guarantors and facilitating the granting of credits to the production units which deposit collaterals. In the legal systems of many countries such as Iran and the United Kingdom, security contracts are recognized to secure financial obligations; Collaterals that gives the creditor the right of precedence and prosecution in order to enforce an objective right over the pledger's assets. In this study, we seek to answer the question that, considering the differences and commonalities in Iranian and British law, how the legal nature of the institution of collateral is included in the framework of legal arrangements. In this regard, it seems necessary to recognize the legal establishment of "collateral" as a new face of collateral contracts, regardless of the difficulties of civil collaterals. By accepting the mentioned theory, the provisions of civil pledging contracts are applicable in cases of silence insofar as they do not contradict the basic elements of commercial collateral accepted by special laws.

The historical studies shows that Imamiyah jurists have not thought that there is no difference between mortgage (Arabic: رهن rahn) and pawn but they have defined rahn as loan collateral. But with the consideration of the limits of mortgage contract in our legal system and the impossibility of applying rahn for some assets or promises, some authors have tried by presenting new theories to deal with these limits. One of these theories is the dualities of mortgage contract and pledge. If it is possible to confirm two characteristics “having particular name and specific conditions and decrees” in law for the agreement of the pledge it can be resulted that the mentioned contract is of nominate contracts. The study of the present laws show that the conclusion of the agreement in the form of the mortgage contract is not possible in most cases because of the absence of one of conditions. The legislator has used the term ”وثیقه“ (pawn). These rules can be applied from two sides: first they prove that it has legal base and it has used several times in different rules. Second the legislator has used the term ”وثیقه“ (pawn) in the cases which one of the provisions of the conclusion of the agreement is not and he has refused to apply the term ”رهن“ (mortgage) through this, he has created a modern foundation (establishment) in the legal system.

Financiers usually enjoy various security devices for guarantee of the repayment of the principal and interest, among them one which is very prevalent, in particular in unsecured finance, is “negative pledge covenant”, according to which the borrower promises not to encumber his assets in favor of any other creditor. This clause purports to protect the financier, who is unsecured, vis-à-vis other creditors of the borrower, who have priority, upon enforcement of his claim out of the borrower's assets. Although this clause, which has various kinds, is basically binding inter partes, in some types, the so-called “affirmative negative pledges” might lead to security interests. The negative pledge clause is popular in corporate finance and not only the validity of this clause, but also its default remedies –in particular against third party creditors who have gained the security interests in borrower’ assets- would be rather illusory under Iranian law. The definition, legal nature, validity and default remedies of negative pledge clause are among the main issues which are examined elaborately in this article with a comparative study of English and Iranian law.

Commercial documents are financial instruments indicating money and cash which can be transmitted to others by countersigning. To pledge financial instruments is also a legal action through which, the merchants usually pawn their commercial instruments at a bank and the like to secure their debts or obligations or to earn credits. This model of pledging is one of the most urgent and serious needs in the local or international economic and commercial relations. In many countries, the legislators have provided, in their laws, pledging commercial documents by “countersigning”. In the Iranian law, with regard to the clearness of articles 772 and 774 of civil law, which are based on the famous Imami jurisprudents’ views, the validity of mortgage contract is dependent on the mortgaged property delivery and its being definite object and therefore, to pledge commercial documents is not acceptable. However, with paying attention to the necessity of correct interpretation of laws based on the daily needs and acceptability of the customary delivery as well as the importance of the commercial and secondary laws, we can consider pledging most commercial documents as acceptable. In Egyptian law, too, pledging commercial documents has been accepted under some conditions.

In the legal system of Iran , the possession of the real properties by foreign nationals , in accordance with regulation of the possession of the real properties by foreign nationals, is limited to conditions. in spite of this limitation ,with attention to nature of mortgage's contract ,real properties can be mortgages for foreign nationals ,because in this kind of contracts, the ownership is not transferred. This contracts is governed by article 34 of the Registration Act of 1386 (2008) and the Executive regulation of the Organization of Registration of deeds and properties of 1387 (2006). In the event of non-payment of debt by debtor and issuance of writ of enforcement and non-payment of debt within 10 days from communication of writ of enforcement ,at the request of the creditor ,auction's meeting is hold. If a buyer is not found ,mortgaged property is transferred to mortgagee. In such a condition the mortgage of the real properties for foreign nationals is challenged. in this article to provide an appropriate solution ,the different proposals is analyzed.

Information inequality of the parties to the contract is known as an asymmetric information phenomenon. This causes two other phenomena called adverse selection and moral hazard that are seen in the banking loans market more effectively. In this paper, the role of collateral against this phenomenon has been examined by considering the economic importance of movable property and the need to use these assets for collateralization and attraction of credit. In addition, the requirement of movable collaterals for playing this role has come to light.  This article argues that the use of collateral will efficiently handle adverse selection and moral hazard phenomena within the Iranian banking loans market, especially with respect to the weakness of the tools necessary for tackling with this issue and will also prevent from accumulation of dues. However, the lack of information transparency and confidence in the security rights within movable property weakens the function of this type of collateral and reduces its potential for collateralization. The creation of a public register system of security rights in movable property as the most effective tool for ensuring transparency and confidence in movable

There is no convergence in the results of the credit relationship between the financial contracting parties (banks and customers) due to the different importance of the contract variables. Therefore, while examining the impact of the empirical relationship between the variables commercial profit-loss sharing contracts, the dual role of the collateral variable (screening and motivation) is investigated. The statistical population of Bank Rafah Kargaran contracts and the statistical sample of data items during period 1383-1393 were used for estimation by purposeful sampling method of multiple logit template. Hypothesis: Low-risk facilitators opted for more liquidity collateral, confirming the existence of an adverse selection phenomenon. Accordingly, individuals are willing to provide the bank with the quality and degree of risk to the bank through the type of collateral (deposit, property, combination, and contract) and the other hypothesis; To help with the collateral, this effect was accepted only for the profit rate variable. However, the model was not validated for the significant underlying variables. Therefore, coordination in the interactive relationships between financial contract variables to mitigate the consequences of asymmetric information in banks' credit policy to improve contract profitability is inevitable.

ThePurpose ofThis Article is toAssess the Validityof Mortgageof Debt in Imamie Jurisprudence and Iran Law with a Descriptive andAnalytical Method.According to the FamousView in Imamie JurisprudenceCertain Goodsof Mortgage andthe Possibilityof a Delivery is aValidity Condition.Therefore, Mortgageof Debt isNot Valid.because Debt isNot Tangibleand Deliverable.The Iran Legislator in CivilLaw has Explicitly Ruled inValidity of Mortgage of Debt by Virtue of Article774 as a Consequence of the Jurists. Debts like Demands and Commercial Documents Although, as a Rule,These Properties Like CertainGoods Are Not Deliverable by Mortgages but in Most Cases, It is Possible Customary andSpiritual Deliver of This Kind of property in order to Maintain the Rights of the Mortgagor. And Void of it is far from the Logic and Needs of the Commercial and Economic. Especially as the Research shows in this Article, In Imamie Jurisprudence, there is no Consensus between the Jurists on the Necessity of Delivery. in Iran Law the Legislator in Many Cases Such as Commercial and Bank Laws, Believes Invalidity of Mortgage of Debt and Somehow Reverted Invalidation Verdict in the Civil Code. Therefore, it is Suggested That the Legislator, While Modifying the Civil Code, will Provide the Basis for Accepting All That is Financially Valuable as Mortgage.

In Legal Terminology, Collateral is as back of loan repayment or for obligation responsibility. Despite that Collateral in economics has different functions. In this paper we focus on Economic functions of Secured Transaction, and its role in Microeconomics and Macroeconomics.The Economic efficiency of the collateral is cleared by economic analysis and the theory of efficient breach that comprehensive secured transaction is able to make efficientallocation of goods and services and finally strong economic functions. In studying this collaterally Institution we get that this formality can effect on positive role in economic development by access to credit easily. So for  increasing Economic officiency of secured Transaction, we need to revise  our laws and regulations that have been mentioned in international reports about this approach.

Iran Commerce Law, in the fifth discussion and chapter 1 on the endorsement of the bill, has not referred to the bailing bill. The credited judicial procedure in lack of law and the existing gap has rarely involved in this discussion and can’t be reliable. Due to the necessity of bailing a bill in commercial affairs, it is competent to study this issue. This study is aimed at investigating the possibility of a bailing bill in Iran and French Law. In this study, the nature of bail, contract on the mortgage as the queen of bails, bill, and bailing bill are analyzed in the frame of a contract. Besides, the challenges and barriers to the bailing bill in Iran law and comparing it with French law are focused. In this regard, votes can be analyzed by the lawyers using the descriptive-analytical method. Finally, with the deduction that the bailing bill is inconsistent with the effects of contract on the mortgage, the possibility of a bailing bill in the frame of contract on a mortgage is canceled. As a result, the bailing bill in French law has been suggested as a legislation pattern in Iran commerce law.

The manufacturer may not be able to personally procure needed capital, so he may go to money market to meet it. Banks and financial and credit institutes make loan to manufacturer and if the sum of loan is more than ascertained amount, they demand mortgage in order to be assured that they are able to collect the loan in the case of borrower’s default. Given that the legal rules governing pawn requires pawnee to act through authorities to sell security and collect the credit if the borrower does not repay the loan, the lenders tried to circumvent the rule by taking agency and personally sell the security. Legislator has apparently decided to protect manufacturer by prohibiting irrevocable agency, whereas the rule is not necessary and it can be said that its enactment amounted to ambiguity and uncertainty, because the Registeration Act has previously banned it and annulling agency has been common in the case law.

According to the article 114 of amended legal commercial bill concerning the joint-stock companies, till the manager has not balanced with the company, his stocks will be distrained in the company safe. The questions are: what is the nature of the stocks? And whether the word "manager" includes the director or not? And if the answer is positive, how the article 114 will be executed in the cases in which the director is elected from non-stockholders? in this article, in order to answer these questions, we have studied different kinds of collateral, the nature of the stocks, the nature of the managers, and the jurists' approaches about them. Finally, we concluded that the stocks collateral is an independent legal institution from mortgage contract. The intended purpose of the legislator by the word "manager" is only the board of directors and does not include the director.