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

the lack of proper legal risk management and compliance causes banks to be exposed to a wide range of criminal, regulatory and civil responsibilities; Therefore, banks should formulate and implement strategic strategies to deal with these risks. Therefore, according to the importance of the subject, the purpose of this research is to compile the legal risk matrix and apply it in the field of banking activity.

It is a Mixed Method research (qualitative and quantitative). The qualitative phase of the research is related to the identification of legal risks and adaptation. In the quantitative research phase, the identified indicators are scored to be prioritized using the risk matrix.

Ethical Considerations:

 In writing the article, the originality of the texts, honesty and trustworthiness have been made.

Using the views of banking and risk experts, 12 cases of legal risk and 12 cases of compliance risk were identified and their probability of occurrence and effects were scored. Finally, the matrix of legal risks and the adaptation of compilation and related strategies were presented based on the priority and position of the risks.

Banks should carefully monitor legal and compliance risks and allocate their financial resources for them. Implementing a risk management system and adjusting internal processes related to it will improve the legal system and reduce legal and compliance risk.

With the emergence of the age of explosion of information and communication, all aspects of human life were affected by this. In such a way that the use of technology has become one of the inseparable parts of today's world. With the expansion of global trade, the need for advanced systems for monetary and financial exchanges was felt more. With the remarkable progress of information and communication technology, banking networks have decided to facilitate and develop their calls and orders regarding financial transactions by creating infrastructures based on information and communication technology. In this, financial messenger systems have been of special importance, because in fact, these systems are the main infrastructure of establishing communication between domestic and international banks. Also, these systems are used for large financial transactions such as issuing letters of credit and guarantees. The most famous international example of these systems is the SWIFT network, which is the most extensive financial messaging network where almost all banks in the world are in contact with each other through the infrastructure and language of this network. Due to the unique features that SWIFT has compared to other financial transfer networks and methods, it can be said that the monopoly of financial messaging networks is in the hands of this financial messaging network. This means that returning to bilateral methods or creating a parallel platform is impractical and uneconomical. On the other hand, in different systems, governments regulate regulations based on various motives, such as limiting the economic power of a company, securing the interests of a particular company, or even for political exploitation. One of the ways to achieve this goal, the public institutions regulating the sectoral regulations, in order to provide safe and continuous public services to the citizens, protect the rights of consumers and investors, and also use the order as much as possible in the way of the interaction of the players of the markets in question. The distinctive feature of the recognition of sector regulations should be considered as the monopoly of these regulations in the market and the constituent sectors. Therefore, it is considered the main inspection of non-competitive markets that the government enters this sector with the title of "regulator". That is, the government intervenes by using the policy of economic regulation and in the form of sectoral regulatory institutions, in order to, on the one hand, support the consumers by bringing the performance closer to the optimal conditions, and on the other hand, prevent the spread of inefficiency and economic anomalies. In this case, the purpose of sector regulatory institutions and economic regulation systems is to regulate the activities of natural monopolies, especially public benefit industries and services, to protect the interests of consumers and improve efficiency. Thus, by creating economic regulation systems, the government tries to simulate a competitive market in a way, and by imposing regulatory regulations, it forces the relevant monopolies to act like a competitive market. Natural monopoly and the creation of a banking messaging unit network for financial exchanges and transfers have led to a sharp reduction in transaction costs for banks. In other words, with the advancement of technology and the provision of suitable infrastructure for the communication and connection of all banks to each other, the creation of a platform and a single communication language made the use of traditional methods such as telex and two-by-two communication of each bank with the other bank eliminated. However, due to the fact that the control and supervision of SWIFT is in the hands of a minority of the member countries, this company has abused this position based on its economic interests and its influential members and can, based on unilateral contractual conditions, target the members of the minority. Deprived of their services this minority practically has no substitute. On the one hand, since the existence of a natural monopoly in a product and service excludes it from the supervision and control of the regulations of competition law, and since SWIFT, as a system that provides banking services, is a natural monopoly, and the creation of other networks for Financial transactions for banks have no relative advantage, so it seems that this monopoly network should be monitored and controlled through sectorial regulations. With regard to the above, this research by explaining the special features of banking financial messenger networks, emphasizing and relying on SWIFT features and the similarities of these features with natural monopoly industries; It is looking for a solution to set regulations to control and monitor this financial messenger network. First, by examining the structure and legal nature of SWIFT, it has acquainted with the mechanism of this financial messenger network and its relationship with banks, and by examining the role of information technology in creating a natural monopoly for monopoly networks and systems; it has to know the advantages and disadvantages of such a monopoly.

Electronic banking or online banking is a service provided by many banks and credit institutions and allows banking transactions to be conducted on the Internet using information and communication technology. The continuation of technological innovations and competition between existing banking organizations and new entrants has made a wider range of banking services and products available, but the rapid development of electronic banking capabilities, in addition to benefits, also brings risks. Modern banking goes hand in hand with new crimes and dealing with these crimes and criminal policy in dealing with these crimes is as necessary as the importance of banking. An important question that was raised and examined in this article is how to evaluate Iran's criminal approach to electronic banking crimes, especially phishing? The method of the present article is descriptive, analytical and library-based to investigate the mentioned question. The findings of the research indicate that in Iran's criminal law, there are no special laws in the field of banking crimes, and mainly, the law of computer crimes governs electronic banking crimes. In Iran's criminal law, the crime of phishing is punishable by imprisonment and a fine.

This study attempted to investigate the allocation of resources in Iranian banks from the perspective of Islamic jurisprudence and existing banking laws through a descriptive and analytical method by referring to the relevant reference books and taking notes from the relevant articles and dissertations.The findings of the study indicate that the mere approval of the law on usury (interest)-free banking operations (approved in 1983) in Iran and its approval by the Guardian Council is not tantamount to the approval of Islamic jurisprudence of the establishment of usury (interest)-free banking system in Iran, but the establishment of such a system in the operational sectors, especially in the sector providing facilities in the country's banks, requires the compliance of the banking system with Islamic jurisprudence and jurisprudential rules.The author concludes that there are jurisprudential and legal problems in the current process of applying the law on usury (interest)-free banking operations to contracts and facility agreements of banks, which in practice guides the course of the country's banking system to what is used in usurious banking. Further, the harms such as usury, tricks of usury, colorable transaction, fictitious contracts, lack of supervision of banks on correct use of facilities and lack of knowledge and information of the customers and even many officials and employees of banks about banking contracts, etc., prevent the application of the aforementioned law to the country's banking operations and establishment of optimal methods of allocation and distribution of bank resources at various levels of society and economic prosperity. Accordingly, the author, inspired by the idees of the experts of banking jurisprudence, has sought to eliminate the listed harms by proposing the compliance of existing contracts with jurisprudential rules and the use of new contracts by the banks for resource allocation.

Today, contracts, as an arena of legal systems are being considered by lawyers as the most important means of communication with the outside world. The purpose of this research is to investigate the role of litigation contract and its effects in the economics of litigation.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Ethical considerations:

 In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

There are rules for how to determine the law governing the contract. These rules have found their place in different countries and regions of the world with different legal systems. One of these criteria is the litigation contract.

The theory of litigation contract can be one of the tools used in legislative policy. Although assuming a contractual nature for this relationship, it does not help to clarify the laws of this judicial institution; Reasons can be found for the concept of litigation contract; Among them, we can refer to the provisions of articles 107 of the Civil Procedure Law regarding the return of lawsuits and 49 of the Civil Code regarding the establishment of a judicial legal relationship.

Investing in Iranian banks with the aim of earning a guaranteed profit while at the same time being legitimate from the bank seems reasonable and low risk. The purpose of this study is to clarify the existing laws in Iranian banks in the deposit and attraction of micro and macro capital, as well as in the allocation and granting of facilities and its compliance with the relevant jurisprudence and rules in the field of transactions and banking.

The present research is of theoretical type and the research method is descriptive-analytical and the library method has been used to collect information by referring to books and articles.

Ethical considerations:

 In all stages of writing the article, while respecting the originality of the texts, honesty and trustworthiness have been observed.

Financing methods in the Iranian banking system are derived from the Islamic banking system and are based on participation.

If Iranian banks implement their policies in the field of equipping resources and allocating facilities, in a completely transparent manner and in accordance with Islamic jurisprudence and banking laws, by attracting micro and macro capital and participating in production, create employment And the economic prosperity of the country, while gaining the investor's trust and satisfaction in enjoying the desired and legitimate return on capital, will greatly reduce the tendency of capital to informal markets, rent-seeking in the economy and outflow of resources from the country.

The growing importance of the role of banks and credit financial institutions in various aspects of economic life and the need for legal supervision and protection over them, has caused legislators to pay more attention to the rights governing their activities. Bankruptcy is one of the most important issues for banks and financial and credit institutions, which is discussed in this article.

This is a descriptive-analytical article using the library method to investigate the question.

Ethical considerations:

 In this article, the originality of the texts, honesty and trustworthiness have been observed.

In jurisprudence, bankruptcy is referred to as bankruptcy and usury, which is reflected in the discussion of bankruptcy in Iranian law. In commercial law, the bankruptcy of banks is seen as the bankruptcy of other merchants or corporations, which does not explain the bankruptcy of banks and credit institutions. Differences in the concept of bankruptcy and the goals, performance and nature of banks with commercial companies are important issues that have been overlooked. Violations of the Commercial Code in the Draft Banking Law have been largely eliminated. The bill takes a more coherent and precise approach to the bankruptcy of banks and credit financial institutions.

The draft banking law does not pay attention to international laws and therefore is not in line with the needs of international trade today.

Muzariba has been a very important type of contract much favored in usury free banking and has appeared in Iranian Usury Free Banking Act. The spirit dominating Islamic muzariba is sharing the transaction risk between the investor and the agency, a fact that has rendered the whole activity justice-based. Besides, some fiqh principles related to profit making prove the necessity of this kind of risk sharing to the extent that if neglected the whole financial contracts will be rendered void. The study is to seek how to adjust the principle of annulling the usurious sale to muzariba. According to this principle, in case the individual lacks guarantee in regard to his property, the ensuing profits do not belong to him. The results show the provision included in the contract denies guarantee for the bank as the owner of the capital, while it has been supposed to share the profit according to the contract. Hence, any “solh” or settlement provision in contract is practically breaching the principle and will lead to the annulment of muzariba.

Most of the assets and property resulting from usury and bribery crimes are taken out of the territorial territories of countries and access to them is generally associated with many problems. However, if they access this property by returning it to the country where the crime took place, the issue of their Kurdish expenses arises. Countries usually punish perpetrators of public bribery with imprisonment and fines. While there are no transnational anti-bribery laws in many countries - the present study concludes that there are weaknesses in anti-bribery mechanisms in terms of Iranian banking law compared to international instruments. One of the weaknesses is the more focused attention to public bribery than private bribery. Because criminal law in modern law tends to provide more protection to public property than to private property, Damage to property implies a loss of citizens' trust and confidence in the ruling forces and as a result a threat to public welfare. He pointed out the elimination of conflicts between existing laws, effective support for informants of corruption, reform of the banking system, especially transparency and public access to the allocation of banking resources and expenses.

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 necessity of Islamic banking is clear to all today, because the impact and the role of banks are so significant in economic aspects and indeed sometimes it leads to economic behavior of the mass to become truly religious; then, they require banks to perform according to religion and jurisprudential legislation. While the attempts in this regard are considerable and worthy of appreciation, they come across challenges in terms of the education of jurisprudential rules and issues such as superficiality of teachings, lack of attempt to make teachings inclusive, personalization behavior, and the lack of a robust basis upon strong and integrated thinking and philosophical pillars. Sometimes, during a time span, the enthusiasm in implementing Islamic banking is completely tangible, while some other times, there is no attempt. Investment in relevant studies also follows the same path; sometimes a bulk of fund is allocated for such studies and some other times the fund reaches the least possible amount. As a result, teaching jurisprudential issues deeply and inclusively, in addition to emphasizing the research must stand upon a fixed and unchanged foundation, and follow an ascending and continuous line. Only in such conditions, along with solving other problems, it is hopeful that Islamic economy is executed in the manner that bank contracts do not solely remain in the formal mode any more.

In the current era, one of the serious needs of the liquidity economic activists is that in the law of unbanked bank operations, this need is met by the contracts of Qarz al-Hassaneh, the purchase of religion and the predecessor. It is a matter of jurisprudential and economic point of view. The forthcoming Letter addresses the jurisprudential and legal review of the Islamic banking agreement. We are investigating and explaining the issue without the need for banking.

The bank as a main aspect of Society’s Economic guarantee the Demands of customer by publishing the Bank guaranty. Bank guaranty is a unilateral obligation that cussed by request of the customers that every time that customer needs to money bank pay for that. Majority of the contemporary jurisprudents are agreeing whit this guaranty but it’s definition makes difference and problem. This article wants to study about jurisprudential subject of this bank guaranty in this Deposit Guarantee, Bail, unilateral agreement, guaranty in favour of third parties, impawn in favour of third parties and Independent contracts. Finally, we accept the “Independent contracts” method as a good one and but we prefer the “guaranty in favour of third parties” as a better one for justifying that bank guarantees are recent demands and we will answer to Criticisms that are related to this method. Our method in this article is analytical-descriptive and as our source we use from books, articles, websites and some database.

Banks and credit institutions are known as the principle center for currency transactions. Therefore, adopting the proper preventive strategies (programs) has a vital importance to prevent dirty money to enter the monetary and banking system. The first step to achieve this importance it is necessary the effective supervision of the Central Bank of Iran over the establishment of banks and credit institutions to prevent or hinder ineligible people (who launder money) to establish banking institutions and quasi-banks (quasi-banking institutions) for preparing a safe place for their illegal actions. Also, it is essential the continuous supervision over the all banking functions and actions by the Central Bank of Iran to ensure the implementation (enforcement) of the anti-money laundering regulations in the monetary and banking system. From the other side, the traditional banking has been replaced by the electronic and virtual banking and its main feature is the easy and online tracking and transferring. It is good (proper) that the banking system to recognize the suspicious (doubtful) banking transactions indicating money laundering provides (considers) technical equipment and payment systems which are equipped by the exact controlling methods in the systems of banking services for the technological prevention. The next step is to consider standards governing the banking system to prevent money laundering. According to the law on fighting money laundering (Anti-Money Laundering Law) and its implementing regulations, the standards are the duty of the Supreme Council for fighting against money laundering has codified regulations relating to identification and authentication, categorization of persons, determining customer-level activities, the relationship between brokerage and other banks in the form of the instruction. These regulations have had the preventive approach and its exact implementation by financial institutions has a crucial rule to decrease the scope of the commitment of money laundering.

Privatization of banks or private banking requires making preparations and regarding different rules and commitments in various fields undoubtedly. Considering legal perspective, the arrangements and requirements will be analyzed and evaluated in the two major cases that are "change in ownership structure" and "change in the areas of decision making and monitoring." In this paper we explain briefly each of these require ments and also will analyze and evaluate history and current attitude of Iran legal system in each of them and regarding to these requirements, we study the strengths and weaknesses of current laws and regulations too. The results of this study shows, although the Iran legal system had a good workbook in terms of "change in ownership structure" in the banking industry but still it is at the beginning of the way in terms of "change in decision making and monitoring" and assignment in this area moves forward slowly.