نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری, حقوق خصوصی ,دانشکده حقوق و علوم سیاسی دانشگاه خوارزمی تهران ایران
2 دانشیار دانشکده حقوق، دانشگاه خوارزمی، تهران ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Banking, as a European institution, today plays a central role in economic and political arenas at both national and international levels. In Iran, the Law on Usury-Free Banking Operations enacted in 1983 prescribed a new framework for the banking sector, banks in practice continue to follow the logic and mechanisms of conventional banking—one of whose fundamental premises is the acceptance of the usurious nature of banking operations—particularly in the granting of facilities and the calculation of profits. In order to expedite the process of taking collateral, banks often execute mortgage deeds prior to the realization of debt, and when confronted with the religious and legal impediments to mortgaging before the debt arises, they nominally stipulate insignificant amounts under the guise of qard al-hasan (interest-free loans).
On the other hand, the acceptance of intangible assets (such as securities, goodwill, and commercial instruments) as collateral faces challenges due to the requirement of possession and delivery of the pledged property and the non-recognition of pledges over debt and usufruct. Moreover, in participatory banking contracts, since the debt materializes only after the partnership period, the validity of the mortgage contract—owing to the absence of an existing debt—remains a matter of legal dispute. In cases of refinancing and debt restructuring, prior guarantees lose their validity if the provisions of Article 293 of the Civil Code are not observed.These challenges have exposed banks to legal risks related to the non-recovery of claims and have led to divergences in practice, both in banking operations and within the judicial system’s handling of related disputes. A shift in legislative and judicial approaches to banking collateral—moving away from the mortgage contract as the sole framework for secured transactions in banking contracts and recognizing an unnamed contract with mutually agreed conditions as a substitute—could represent a forward step toward better alignment of banking law with contemporary economic requirements.
Keywords: Banking, Mortgage, Banking Facilities, Islamic Banking, Usury
کلیدواژهها [English]
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