The Contradiction of the Provisions of the Model Statute of the Non-Governmental Banks with Legal Regulations

Document Type : Scientific research

Author

• Fardin Ghoreishi

University of Tehran

https://doi.org/10.22067/le.v25i13.61999

Abstract

Introduction
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.

Keywords

• "The Money and Credit Council"
• "Central Bank"
• "Pattern Statute"
• "Banking Regulation"
• "Private Banks"

References

[1] Asgari Tavani, Ali. (2004). "Legal Nature of Relationship between Manager and Commercial Firms". Dadrasi. No. 47, November & December 2004. (In Persian).

[2] Bagheri, Mahmoud and Shushinasab, Nafiseh. (2011). "Restrictions on the ownership of banks in Iran via comparative study". Comparative Law Research. Summer 2010, Issue 2, Pages 1-20. (In Persian).

[3] Bylaw of the Establishment and Administration of Non-Governmental Banks and Financial and Credit Institutions. (2009). Retrieved September 2, 2015 from http://www.mefa.ir/portal/home/publishing/244126/244169/245573. (In Persian).

[4] Circular No. 92/117708 of the Central Bank of the Islamic Republic of Iran (2014).Retrieved May 25, 2016 from http: //www.cbi.ir/section/1453.aspx. (In Persian).

[5] Circular No. 92/127085 of the Central Bank of the Islamic Republic of Iran (2014).Retrieved May 25, 2016 from http: //www.cbi.ir/section/1453.aspx. (In Persian).

[6] Circular No. 92/23943 of the Central Bank of the Islamic Republic of Iran (2014).Retrieved May 25, 2016 from http: //www.cbi.ir/section/1453.aspx. (In Persian).

[7] Circular No. 92/377538 of the Central Bank of the Islamic Republic of Iran (2014).Retrieved May 25, 2016 from http: //www.cbi.ir/section/1453.aspx. (In Persian).

[8] Dabirnia, Alireza. (2014). "The Jurisdiction of the Islamic Consultative Assembly in establishing supreme executive councils: independence of powers or limiting the Jurisdictions of executive power". Legal Journal of Justice. No. 88. Winter 2014, pp. 115-144. (In Persian).

[9] Eskini, Rabia. (2008). Trade Law: Commercial Companies. First volume. Twelfth Edition. Tehran: Samt. (In Persian).

[10] Hasani, Hasan. (2004). Commercial Law. Third edition. Tehran: Mizan. (In Persian).

[11] Hayati, Ali Abbas. (2007). "The Jurisdiction of the government in the regulation of the Bylaw and Act and the Mechanism of its monitoring." Qovah Quarterly. No. 10. Autumn 2007, pp. 52-57. (In Persian).

[12] Instructions for Acceptance and Disqualifying of Professional Competence of the CEO and Members of the Credit Institution's Board of Directors. (2011). Retrieved July 27, 2013 from www.cbi.ir/page/8433.aspx. (In Persian).

[13] Model Statute of Non-Governmental Commercial Banks. (2014). Retrieved September 2, 2015 from http://www.cbi.ir/section/1453.aspx. (In Persian).

[14] Mohammadian, Ali & et al. (2014). "Examination of the Reasons and Documents of the Principle of" Non-Reversal of Criminal Law in the Legal System of Islam ". Criminal Law Research Journal. Spring & Summer 2014. Number 9, Pages 109-128. (In Persian).

[15] Pasban, Mohammad Reza. (2010). "The Competence of Business Firms and the Limits of the Authorities of Business Managers". Legal research. Spring & Summer 2010, Issue 51. (In Persian).

[16] Sajedi, Vali. (2005). "Choosing Board Members from Non-shareholders". Auditor. No. 29, Summer 2005. (In Persian).

[17] The Law of Banking Operations without Gavel. (1983). Retrieved June 29, 2016 from www.cbi.ir/page/2237.aspx. (In Persian).

[18] The Law of Organization and Procedure of Administrative Justice Supreme Court (2013). Retrieved July 25, 2016 from https://divan-edalat.ir/show.php?page=translate. (In Persian).

[19] The law of Reforming Part of the Commerce Code. (1968). Retrieved July 28, 2016 from https://www.sb24.com/dotAsset/44281421-65e6-4386-8190-96ae9d32d8a6.pdf. (In Persian).

[20] The Law of the 5th Five-Year Plan of Development of the Islamic Republic of Iran: 2011-2015 (2011). Retrieved April 23, 2015 from http://rc.majlis.ir/fa/law/show/790196

[21] The Law on Amendments to the Law of the Fourth Plan of Economic, Social and Cultural Development of the Islamic Republic of Iran and the Implementation of General Policies of Article 44 of the Constitution. (2008). Retrieved April 23, 2015 from http://rc.majlis.ir/fa/law/show/134223. (In Persian).

[22] The Monetary and Banking law of the Country. (1972). Retrieved June 29, 2016 from http://www.cbi.ir/section/1453.aspx. (In Persian).

[23] Vijeh, Mohammad Reza. (2009). "The Principle of Separation of Powers in the verdicts of the General Board of the Administrative Justice Court". Law Magazine of the Judiciary. 72, No. 67. Autumn 2009, pp. 39-54. (In Persian).