جستجوی مقالات مرتبط با کلیدواژه « اصل 44 » در نشریات گروه « فقه و حقوق »

The purpose of principles 44 and 46 of the constitution is to create competition, prohibit monopoly, efficiency and monitor the economy in order to increase the welfare of the society and create justice. Despite Article 46, no person is allowed to prevent the employment of others with respect to the activity and job they do, there is a suspicion of monopolization in the regulations of areas such as treatment. In this research, we will examine it. By identifying such regulations, it can be amended, In the current research, library and internet materials were used and descriptive-analytical method was used to check the data. This article seeks to answer the question of whether the regulations established in the field of treatment violate the principle of non-monopoly. As an answer, by stating the monopoly components in the policy implementation law, Article 44, reviewing existing regulations and laws, we will deal with the contradictions of these regulations with Article 46 of the Constitution in the field of treatment. Finally, we have come to the conclusion that in the existing laws and regulations in the treatment sector, some monopoly components such as the very low capacity of universities of medical sciences, anti-competitive obstacles through the non-issuance of licenses for traditional medicine doctors, determination of medical tariffs by the doctors themselves can be seen, that as a procedural solution, these laws should be amended first and As fundamental solutions, the general anti-monopoly policies law, article 46 is proposed.

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 informal Constitutional amendment is a process which alters the meaning and concept of the Constitution without changing its text. This process which may happen consciously or unconsciously as a result of the actions of governmental authorities and entities, changes the Constitution outside its formal amendment mechanism and in fact infringes that. One of the issues likely to have altered the Constitution in this way is the adoption of general policies of principle 44 by the Supreme Leader so that as a result of these policies, important evolutions have taken place in the way of investment, ownership and management of those envisioned in the beginning of the principle.
This paper seeks to examine the ratio between the general policies of principle 44 and the content of this principle with an analytic approach. The question is whether the Constitution has been changed with these policies or not. Simultaneous regard to the content of the beginning and last paragraph of principle 44, alternativeness of principle 44 from the viewpoint of Constitutional legislator, possibility of devolving the issues set forth in the beginning of the principle to non-governmental sector even prior to the adoption of the mentioned policies and other evidences all prove that the general policies have been in accordance with the Constitution and in line with principle 44.

Unfortunately, merging process and legal issues in Iran legal system hasn’t been resolved despite of the complexity on merging Trade Companies. Merging companies results to mitigate cost and trade risks and to elevates productivity as well as managing concentration on capital market, and affects significantly on financial and economical affairs.so, knowledge to legal issues of merging is essential. Although commerce law commits debts, obligation and assets of merging companies transfer to new company or integrative company, but transferring obligations or assets should be interpreted on a framework of general rules and principals. The time for transferring of debts and obligations is significantly important, so “companies Registration Offices“ consider specifically on them. Merging trade companies, the time of transferring obligations is too important. other issues to transfer obligations including asset exchanges, tax payments, assessment and account auditing.