جستجوی مقالات مرتبط با کلیدواژه « حقوق بانکی » 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.

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.

As an institution influencing the socio-economic relations of human societies in the present era, "Bank" is of high importance. Thus, such subjects related to this area as "bank and its nature", "money and its role in the economy and trade", "riba (usury) and its difference with profit", "conventional and Islamic banking", "banking services such as letters of credit (LC)" etc., all known as "banking law", which is an important subset of economics and business law (both domestic and international), are also of particular importance. At the same time, the necessity of pathology of the Usury-free Banking Law (1983) after four decades of its implementation has provided the grounds for different opinions from experts in this area: Has Iran's banking system been successful in implementing and enforcing the said law, or has the banking operation been diverted from the sharia and legal path for various reasons and has adopted a "quasi-usury" policy? Given that the main focus of "Islamic/non-usury banking" is on usury and its religious sanctity, the necessity of addressing this issue fundamentally by the supreme religious authorities and jurists is felt more than ever, and therefore seminaries along with Iranian universities as two main source of thought production in society are obliged to provide the necessary religious and academic answers to questions and ambiguities related to the above issues by conducting original and fundamental research. The present study attempted to address the various aspects of the subject under discussion and provide the opinions of experts in banking law (including scholars and academics), as far as possible, to explore the importance of the issue and present solutions to the current problems related to Islamic banking so that they can be used in the amendments to the said law, which is desired by the Islamic Consultative Assembly and the government. Therefore, after the introduction, the overview dealt with, evaluated, and analyzed the bank and its importance in the present era, as well as the sublime position of Imamiah jurisprudence/Ahl al-Bayt (PBUT) as a divine resource and strengthening the fundamental subjects related to and influencing contemporary law. Then, the objections and criticisms regarding the function of the banking system in the implementation of Islamic banking within the framework of the law on usury-free banking were considered. Finally, after summarizing the results, suggested amendments were made to be used by officials and those interested in this significant area of law.

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.

In 2013, the Iranian Monetary and Credit Council ratified a statute titled " The Model Statute of the Non-Governmental Banks". Then the Central Bank submitted the Model Statute for ratification and implementation to non-governmental banks. The Model Statute was challenged by non-governmental banks. But the Central Bank, by relying on various instruments, forced the non-government banks to accept the Model Statute. The question of this study is to assess the legal legitimacy of The Monetary and Credit Council and The Central Bank. Theoretically, the power of lawmaking and regulation is within the jurisdiction of the legislative power, and the authority of other institutions in the enforcement of regulations is only in the framework of the laws passed by the Parliament. Therefore, it can be asked whether the approval of The Model Statute of Non-governmental Banks by The Monetary and Credit council and The Central Bank's actions in this regard are in the same context and in accordance with the relevant rules?
This question has been investigated using legal reasoning methods and specifically logical comparisons and inferences. In other words, using this research method, ruling laws have been referred and compared with the regulations approved by The Monetary and Credit Council in the matter under discussion. Then, the amount of observance or violation of these laws is deduced, and in this way, the legal legitimacy of the statute is judged.
The findings of this article are as follow:The Monetary and Credit Council, regarding paragraph C of Article 30 of The Monetary and Banking Code of the Country, has merely the power to approve the proposed statutes of banks. Therefore, since approval of the Statute is different from drafting and regulating of statute and requiring of banks to implement it, The Monetary and Credit Council has violated this code and has exceeded its legal jurisdiction via regulating the Model Statute and imposing it on non-governmental banks.
In accordance with paragraph 5 of Article 30 of The Monetary and Banking Code of the Country, the power to change the statute of banks belongs to their shareholders. In fact, the extraordinary general meetings of banks can change the bank's statute and submit it for approval by The Monetary and Credit Council. The Monetary and Credit Council, by drafting and regulating the Model Statute and requiring of non-governmental banks to approve it, in effect, has deprived the shareholders of the banks from their right to any alteration in the provisions of the current bank statutes, and thereby, paragraph 5 of Article 30 of The Monetary and Banking Code of the Country has been violated.
Based on the general principle of non-retroactivity, the law that was ratified at the current time should not be generalized to the time before its adoption. In the case in question, The Monetary and Credit Council declares to non-governmental banks that they have to change its previous statute and replace it with The Model Statute. This is contrary to the general rule of non-retroactivity.
Article 19 of The Model Statute, in the context of the regulations on increasing the capital of non-governmental banks, has empowered the Central Bank, which is in breach of Paragraph 7 of Article 9 and Paragraph 1 of Article 3 of The Commercial Code, because the increase of capital is one of the rights of corporations and its shareholders.
The next point is the requirement of non-governmental banks to reform their shareholding structure. According to the ruling laws and regulations, The Central Bank does not have any explicit jurisdiction in this regard; but it has expanded its jurisdiction with a broad interpretation of laws and regulations and has provided some illegal assignments to non-governmental banks.
Article 64 of the Model Statute required non-governmental banks to choose only the natural persons for membership in the board of directors. This is in contrast to the article 110 of The Act of Amendment of Some Part of the Commercial Code, which accepts the membership of legal entities.
The Monetary and Credit Council has set limits on the selection and dismissal of board members beyond what is required by law. The action of this council to develop the authority of the Central Bank to intervene in determining the members of the board of non-governmental banks is beyond the framework of the law, thereby violating Articles 108, 107 and 111 of the Commercial Code.
The last case discussed is the powers reserved for the Central Bank for the appointment of liquidators for liquidated banks, and this discretion is contrary to Section C of Article 41 of The Monetary and Banking Code of the Country.
With regard to the above cases, it seems that the actions of The Monetary and Credit Council and The Central Bank in the matter under discussion are the subject of abuse of legal authority and, accordingly, are among the issues under Article 12 of the law on the organization and procedure of The Administrative Justice Court.

The credit is a written commitment by which the bank, at the request of the buyer, undertakes to pay a specified amount of money within a specified period to the specified documents and, in accordance with the order of the buyer, pay to the seller. The Bank's obligation to pay is contingent and limited to the amount, duration and conditions that are mutually agreed between the parties and indicated in the text of the instrument of credit. In fact, documentary credit is a means for payment of purchased goods and an obligation by which the seller assures the receipt of the goods and goods that are sold and the buyer guarantees the receipt and accuracy of the purchased goods. With the use of domestic lending in the country, the need for the drafting of laws and regulations in this field was created and the banking and regulatory system of the country required it to develop and implement specific regulations in this field. In this regard, in the year 1380, for the first time, regulations on the LCI were announced, but after the abuse of this type of credentials by the Arya Group and the filing of the so-called macroeconomic corruption, according to the Central Bank's decree issuing domestic lending And the discounting of these LCs was stopped in the second six months of 2011. After the issuance of rigorous regulations to the past and the adoption of the internal-Rial Instruments Directive on December 17, 1994, by the Money and Credit Council, the re-issuance and rebate of the internal LC has begun.

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.

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.

La promesse de porte-fort est un contrat par lequel (A) promet à (B) le fait quelconque de (C). Le plus souvent considéré comme un moyen de faciliter la conclusion d’un contrat, elle peut aussi jouer le rôle d’une sûretté personnelle: ainsi le fait promis peut être l’exécution d’un engagement valablement pris. En droit iranien, en raison des inconvenients grave du cautionnement, on a de plus en plus besoin de cette aspect moderne de la technique du porte-fort Après avoir examine le role et domaine du porte – fort “Ratirication” et port – fort “d’exécuiotion” nous alons étudié les problèmes délicats de ses effets: l’exécution forcé et volontaire; la devolution successorale du porte- fort et la responsabilité contractuelle du promettant.