جستجوی مقالات مرتبط با کلیدواژه « banking law » در نشریات گروه « فقه و حقوق »

Since governance has various aspects and dimensions, including economic governance and its subsets,The monetary and financial policy through the central bank of the country's government is considered as monetary governance. With the emergence of new technologies such as blockchain, it seems that this Governance has become relative and has been overshadowed by this technology and has reduced the control of governments over the implementation of monetary policies. Central banks, which see their monetary sovereignty at risk, react based on their understanding of the issue and of course, some governments consider this technology as an opportunity for themselves. Accordingly, this article examines the monetary sovereignty of countries under the influence of cryptocurrencies and blockchain technology, and with a descriptive-analytical method, it seeks to explain the relationship between cryptocurrencies and the monetary and national sovereignty of countries in the field of international law.

Banking has always been one of the most important economic issues in any society, and today, due to the bank-oriented nature of our society's economy, the study of banking law issues has a special priority. One of the most challenging issues in this area is the phenomenon of bank entrepreneurship, which has attracted the attention of many media and experts. The purpose of this study is to legally study the process of separation of commercial banking and investment banking, as well as to examine the legal aspects of the phenomenon of bank entrepreneurship with a comparative approach and to examine the reasons for banks to move forward and to examine the Islamic position on this phenomenon. The author's research method in this research is descriptive-analytical, which has tried to study and analyze the subject by referring to books, articles, and interviews. Due to the economic conditions of society, bank entrepreneurship is an inescapable phenomenon and a way to preserve the existence of banks and their customers and also to prevent the spread of contagious risk to the country's banking system, which according to the definition of Islam is part of the nature of banking. Which must have a limit and not be unrestrained to cause harm to the country's economy.

The current article revolves around the comparative study of the cryptocurrencies from the perspectives of the contract law and banking law by examining the basics of contract law and banking law and taking into account the validity and credibility of the Cryptocurrencies Code in Iran.  What present paper is in pursuit of is seeking the application of crypto currencies and their validity in contract law and banking law while taking an effective step in acknowledging the rights to deploy the Cryptocurrencies Code in Iranian trade by elaborating on its dimensions. The results reveal that in Iran,  the only law that has been approved on the use cryptocurrency is the approval of the Cabinet dated 06/05/2017 which is in reality based on the Principle 138 of the Constitution of the Islamic Republic of Iran regulated in 6 Articles and 7 Notes. From the perspective of contract law, citing Articles 1 and 2 of the above decree, it can be stated that the use of cryptocurrencies, which is done only by accepting responsibility for risk by traders, is not subject to the support and guarantee of the government and the banking system, and that its use is not permitted in domestic transactions. It needs mentioning that under the mentioned content, the only exception is the case of extracting encrypted processing products whereby mining has been allowed with the permission of the Ministry of Industry, Mines and Trade. In banking law, the use of the cryptocurrencies and the amount of its supply is done solely by the Central Bank of Iran and are totally subject to the laws and regulations of the Islamic Republic of Iran.

The General Board of the Supreme Court of the Country invalidated the condition of "excess interest over Central Bank's approvals" in contracts granting banking facilities by issuing unanimous decision No. 794 dated 21/5/2013. Regardless of accepting or not accepting the criticisms of this ruling, this ruling is not controversial about "exchange contracts" whose interest rate is fixes at the time of conclusion, but because of the nature of "Partnership Contracts," it raises an important question. Did it include these contracts or not? In this regard, some experts believe that according to the "jurisprudential foundations" and the "law of interest-free banking operations" the mentioned decision does not include "partnership contracts" because the inclusion of "expected profit" is only to prove the permission of the bank to enter the stage. is the conclusion of these contracts and the rate of "definite profit" in these contracts is determines after the "end of participation and audit"; On the other hand, some others believe that the said decision includes "partnership contracts" as well because what is included under the name of "expected profit" rate in these contracts, in practice, without any change, is the basis for regulating the relations between the bank and the customers. Keywords: banking law, unanimous decision No. 794 of the General Board of the Supreme Court of the country, partnership contracts, exchange contracts, interest rate, approvals of the Jurisprudence Council on Money and Credit of the Central Bank.

Introduction:

Many governments use the Privatization process to promote their economic system. This process can have a great impact on banking sector. The need for a research in Privatization’ programs, implemented by many developed countries, is felt today more that ever before.  In the state-owned banking system of Iran, there are only 4 banks which are considered as “private banks” The next phase of the privatization of the Iranian banking system will shift a wide range of state-owned banks to the private banks.There are many ways to privatize, and each country has its own set of methods depending on the economic structure and type of enterprises. The most common methods of privatization in the world are:a. Offer shares to the publicb. Offer shares to specific groups.c. Separation of unit's subject to transfer to smaller units and transfer of ownership or management.d. Attracting private sector participation in new investment required by governmental unitse. Transfer of Management or Lease of Assets.The beneficial effects of privatization can only come from properly implemented privatizations. The key is how to privatize?The World Bank recommends in a circular for privatization: The legal framework of the country should support privatization in two respects: First, there may be laws required in the process of preparing banks for privatization and transactions;Second, the overall legal environment should be one in which newly established entrepreneurs can access credit, and compete on an equal footing with the remaining government. There are three types of transfer methods in Iran:a. Sales through the public offering of stock in domestic or foreign stock exchanges.b. The complete sale or supply of block shares through public bidding. c. Complete sale or block sale through negotiation

Theoretical frame work:

 This article will examin different challenges of implementing the privatization process to provide the most adaptable privatization model for Iranian banking system So, what are the legal requirements for the privatization process in a way the banks can benefit from this process? 

This research is under the study of public economic law. From this perspective, although from a methodological point of view, this field does not analyze economic phenomena, the framework of formative interpretations of conventional legal rules in traditional and sometimes Iranian civil law will not be considered.  This is because the legal tools of public economy include a wide range of legal regulations and practices and various issuing authorities and focus on the interrelationship of economics with realistic law. In other words, the banking law system created in the context of economic law, will focus more on managerial and sometimes non-legal analysis, which is defined in line with legal and economic issues.

Nowadays, the function of privatization has become a tool to create a complex ownership structure in privatized banks. While government is taking control of the transferred banks, the process of privatization seems to be far from being realistic. Having said that, the process of privatization can be realized by reducing the role of the government in economic activities and promoting the efficiency and productivity of the banking system. However, it is important to bear in mind that the banking system in Iran is still under control of the government. Therefore, it is important to examin the nature of governance in the privatization process. Generally speaking, privatization of enterprises should take place through the public offering. But when there is no purchase after two auctions, privatization is permitted through negotiation and after the board approvals.lack of capacity of the non-government sector is the main reason for the privatization process of the banks that happens through any other ways rather than public offering. But, in such an economy where its main part is dominated by the public sector, how small private sector can take control of the large public sector? The challenges experienced in the first wave of privatization showed that failure to use proper privatization methods can have a devastating effect on the future of the banking industry. Therefore, choosing the right method for privatization is very important. In our country, the privatization of banks not only has not reduced the economic problems, but also has increased the problems of the banking industry and the national economy. Therefore, we need to use this experience and apply alternative ways to reconsider the privatization process and empower the private sector in a way that it becomes the dominant part of the banking industry.

Conclusions & Suggestions:

Privatization takes place through transfer of ownership and management Due to the lack of sufficient liquidity for the buyers in the country, the first method was not successful.  In this regard, the transfer committee has decided to privatize the banks in the first wave of privatization through non-public offering. However, it has not achieved the goals of privatization. On the other hand, regarding different challenges of the Iranian bankning privatization we can considere changing of methdoes and approaches at this field in both regulatory system and the banking actors. For the last one, it could happen by downsizing of banks through the transfer of assets and subsidiaries, as well as the use of bank management transfer methods to empower the private sector for buying. bank shares.

The legal institution of “debt buying” in the Iranian law system is officially recognized by article 98 of the “fifth program for development law”. This institution with a long jurisprudential precedence is the subject of disagreements in Imamiah jurisprudence. There are serious disagreements about the nature and the legal status of the institution among the Imamiah jurists. These disagreements have led to some doubts about it, and the way of its application is still the subject of controversies. Knowing the consequences of the contract and interpretation of the legal relation between the parties are depending on the accurate legal description and true understanding of its legal status. As to the nature of this legal institution it can be said that it was known as “sale”, but after enacting of the “fifth program for development law” it is described as a definite contract with its special rules and results, although analytically it is still a sale. As to the legal status of the institution after analyzing the different jurisprudential ideas we concluded that the idea of absolute validity of the contract of buying of debt has been the basis of accepting it as a new monetary tool in the banking system by the lawmaker.

Debt purchase contracts a kind of contract in which the long term debt of debtors is bought with a price less than its real price by debtor or a third person. Although there are a wide variety of opinions about the legal status of this subject, it is accepted in most cases. Nowadays, considering the existence of a broad range of debts and the contracts based on them, and also employing the mentioned contract in society, it was necessary for the legal status to look for its permission, conditions, and effects. Finally, in 1389, after submitting the proposal by the juridical council and defining debt purchase and its functions in bank system, the mentioned contract was included in 98th article of 5th development plan and its executive recipe have mentioned some rightness conditions of debt purchase contract such as being real, being able to liquidate, and so on. Therefore, nowadays debt purchase contract is considered as one of the financial tools and credit supply resources in banking law and some banking contracts could be made in the form of of debt purchase such as: credit contracts, deposit and bank loans, credit cards contracts.

By creating a bank account agreement, an account is opened under the name of the applicant in the name of the bank. In accordance with the provisions of this agreement and the intention of the parties to the contract, the bank undertakes to accept all the funds the account holder or third parties intend to deposit into this account with the account holder, and, accordingly, the account holder has the right to deposit funds into this account Will have. The same funds are deposited in the account of the bank and the bank shall receive the equivalent of the received funds due to the owner of the account. Therefore, the owner of the account will have the right, at any time by issuing the checks, to demand the same funds from the bank, and the bank will be obligated. Among the above obligations, only the obligation of the bank to accept the transfer of funds is accrual and only due to the conclusion of the contract is made and payable, and other obligations contained in this contract are suspended for the deposit of funds and are not due to the conclusion of the contract and are not required This paper examines the contract for the formation of a bank account as well as the general and specific terms and conditions of this contract.

Increasing resort of people to the banks make them to access classified information of the customers such as financial status, balance of the account and personal information. In order to gain the trust of customers and prevent Personal and commercial losses and economic abuse, banks make these data confidential and refused disclosure of them. Although the protection of banking secrets is an inevitable principle concerning social necessities such as confronting crimes like money laundering, terrorism financing, tax evasion and the need for financial transparency, it is appropriable in such areas. These exceptions, however, varies from country to country but we seen more common trends in all.
This paper shows the basis, sources, scopes and the effects of banking secrecy in Iranian law and note the necessities of legislation by that.

Banks play an important role as an intermediary in the financial system between the lenders and applicants of financial sources. They absorb the financial sources of customers and present them to applicants. Their financial relations are arranged on the basis of the credit rating of their applicants. The financing restrictions and complexity of banks relations and inherent risk of financing have made the banks to design a model to fund their financial sources and distribute their various risks. One of these models is financing by using syndicated loans. Since most of the big projects need a high amount of financial sources, the use and significance of syndicated loans is increasing. In this paper, we tried to examine the concept and structure of syndicated loans by using an analytical and descriptive model which explains the necessity of using this method in the legal and economic system of Iran. We concluded that the main reasons given for non-use of this method are the lack of adequate legislations in this field and the absence of information transparency in the contractual structure of such credits as well as the legal rules governing relations between syndicate members.

Banks play an important role as an intermediary in the financial system between the lenders and applicants of financial sources. They absorb the financial sources of customers and present them to applicants. Their financial relations are arranged on the basis of the credit rating of their applicants. The financing restrictions and complexity of banks relations and inherent risk of financing have made the banks to design a model to fund their financial sources and distribute their various risks. One of these models is financing by using syndicated loans. Since most of the big projects need a high amount of financial sources, the use and significance of syndicated loans is increasing. In this paper, we tried to examine the concept and structure of syndicated loans by using an analytical and descriptive model which explains the necessity of using this method in the legal and economic system of Iran. We concluded that the main reasons given for non-use of this method are the lack of adequate legislations in this field and the absence of information transparency in the contractual structure of such credits as well as the legal rules governing relations between syndicate members.

Today, factoring is one of the sources for financing in banking law. After entering in the legal literature of banking system, it has had a special importance. Factoring is a contract which the debt is bought less or more than its nominal value from creditors by the debtor or third party. There is a great disagreement about its legal status in Shia jurisprudential literature which the attitudes of the well-known Shia jurists which have been considered by the legislator as a source is the validity of the factoring contract in most cases and types. The factoring contract can be applied in many cases in banking operations without usury: credit contracts which contain the most majority banking operation in these days and in the form of factoring, they can be made completely. Bank cards, bank deposits and bank loans can be realized by factoring in banking operations without usury as it does not face any legal and divine law (shariah) problems. Letter of credit discounting and forfaiting are those of are those of sources for financing for business men which they can be realized.

Electronic fund transaction refers to any transfer of funds in which electronic media are used in at least one of its processes. Depending on the type of transaction، the legal relation of the bank and consumer may constitute agency، cession of claim or loan contract. According to the UNCITRAL Legal Guide and the regulations of Iran and the United States، the obligations of bank against consumer are “Consequential Obligations”. The bank is liable for the losses arising from its systems، employees and other institutes cooperating with it. This comparative study discusses that Iran’s law has deficiencies in some aspects such as the moment of irrevocability of payment order. Also some of the provisions of model contracts، which are used in the banking system، are in conflict with the mandatory regulations of consumer protection، and should be modified.