Author
KALKAN, Cemal
Publication Place
Hits University -
Hits University
Subject
Capital
Type
Book
Language
ara,eng
Digital
Yes
Manuscript
No
Library
Leitir Library
Library Asset ID
ISSN: 2757-6949, EISSN: 2757-6949, DOI: 10.14395/hid.930102
Record ID
cdi_doaj_primary_oai_doaj_org_article_e16d83fb655649dabfbf27236ac76e37
Library Location
DOAJ Directory of Open Access Journals
Notes
Participation accounts, which form the main backbone of participation banks, are based on the mudarabah contract and these accounts are operated by the bank considered as mudarib. Therefore, in case of loss, the bank has no obligation to guarantee the capital. Because, according to the classical understanding of mudarabah, the mudarib can compensate the capital only in cases of negligence, negligence and in violation of the conditions of the capital owner. However, some modern studies have suggested that mudarabah capital can be guaranteed by a bank or an independent institution. At this point, there are two basic approaches: the bank or a third party other than the bank guarantees the capital. The first approach is that the participation account capital is guaranteed by the bank. In this approach, it is stated that the bank can guarantee the mudarabah capital voluntarily or compulsorily after the contract - by stipulating it during the contract. Because the interest-free bank does not only employ the capital of certain people, but also acts as a shareholder, providing services to everyone who has capital and wants to invest. Therefore, the bank can guarantee the mudarabah capital as if it were a mutual reward. Thus, the bank is prevented from wasting mudarabah assets regardless of economic balances. Those who argue that interest-free banks can voluntarily guarantee the capital of participation accounts do not see the bank as an element of the mudarabah contract. According to this understanding, the bank makes a donation to the capitalist by guaranteeing the capital. The second approach is to guarantee the mudarabah capital by a third party other than the bank. It has also been claimed that the capital can be guaranteed by an independent organization (risk fund, treasury and similar institutions) other than the parties to the mudarabah contract. Accordingly, the bank establishes a mutual insurance company (شركة تأمين تعاونية) by agreeing with the account holders and deducting some amount from the mudarabah profit. Damages that may occur later are covered by this company. The legitimacy of the deduction in question is based on the permissibility of giving a share of the profits to persons independent of the Mudaraba contract. It has been stated that an interest-free bank can guarantee the capital of its customers through a foundation or the state it has established, and that this will be a mere donation. However, it is also stipulated that the party guaranteeing the capital should not be a party to the mudarabah contract. Fiqh academies and similar boards affiliated with various organizations have accepted that capital can be guaranteed with reserves allocated from the profits of account holders, supporting the views put forward. Since the mentioned reserve was intended to protect the mudarabah capital, they deemed it necessary to cover it only from the profits of the account holders. Participation account capital is secured with a different method in our country. The capital in the participation account is partially or fully guaranteed by the Savings Deposit Insurance Fund (TMSF). In fact, SDIF only partially compensates account holders' capital in case the bank goes bankrupt, otherwise it does not intervene when the participation account suffers a loss. In addition, our country's banking legislation previously required interest-free banks to bear losses at half the rate at which they participated in the profit. Banks' exposure to losses at least half of their profit participation rate means that they are securing the mudarabah capital, which is not permitted by fiqh. However, with the relevant regulation published in the Official Gazette No. 30569 dated 18/10/2018 and entered into force, the loss participation rate of the participation account was accepted as 100%. Thus, this situation, which was a shariah drawback regarding participation accounts, has been corrected. The shariah drawback in this matter is acting contrary to the principle of obtaining returns from goods for which no compensation liability is assumed. As a result, in this study, it will be explained whether the suggestions put forward for the guarantee of mudarabah capital are within the limits allowed by fiqh, and then the most reasonable suggestion currently put forward for the compensation of the capital will be tried to be determined. Participation accounts, which constitute the main backbone of participation banks, are based on the mudarabah contract and these accounts are operated by the bank that is considered as mudarib. Therefore, in case of loss, the bank has no obligation to guarantee the capital. Because, according to the classical mudarabah understanding, the mudarib compensates the capital only in cases of taaddî, taqsir and opposing the conditions. However, some modern studies have suggested that mudarabah capital can be guaranteed by the bank or an independent institution. At this point, there are two basic approaches: Securing the capital by the bank or by a third party outside the bank. It has been stated that the bank can guarantee the capital of mudarabah voluntarily or compulsorily -by stipulating during cash- after the contract. Because the bank does not only employ the capital of certain persons, but also serves everyone who has capital in their hands and wants to invest by acting like a common laborer (al-acîr al-mushtarak). Therefore, the bank can guarantee mudarabah capital like al-acîr al-mushtarak. Thus, the bank is prevented from losing mudarabah assets regardless of economic balances. Those who argue that interest-free banks can guarantee the capital voluntarily did not see the bank as an element of the mudarabah contract. According to this understanding, the bank grants donations to the capitalists by guaranteeing the capital. It has also been argued that the capital can be guaranteed by an independent institution (risk fund, treasury and similar institutions) other than the parties to the mudarabah contract. Accordingly, the bank establishes a mutual insurance company (شركة تأمين تعاونية) by making some deductions from the mudarabah profit within agreement with the account holders. The losses that are likely to occur later are covered by this company. The legitimacy of the deduction in question was based on the permissibility of granting dividends to persons independent of the mudarabah contract. It has also been stated that the interest-free bank can guarantee the capital of its customers through a foundation or state it has established, which can simply be a donation. However, it is also stipulated that the party that guarantees the capital shouldn't be a party to the mudarabah contract. Supporting the views put forward, fiqh academies and similar boards affiliated to various institutions have accepted that the capital can be guaranteed with the reserves allocated from the profits of the account holders. Since the reserve above mentioned aims to protect the mudarabah capital, they have considered it obligatory to meet only from the profit of the account holders. As a result, in this paper, it will be explained whether the proposals put forward for the guarantee of mudarabah capital are within the limits permitted by the fiqh and then the most reasonable proposal put forward to compensate the capital will be tried to be determined.
Detaylı Başlık
Katılma Hesaplarının Sigortalanmasının Fıkhi Analizi
