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

دانشنامه حقوق اقتصادی

Article 2, Volume 25, Issue 14, October 2018, Pages 27-46   

Document Type: Scientific research

DOI: 10.22067/le.v25i13.61999

Author

Fardin Ghoreishi^*

University of Tehran

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"

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