伊斯兰银行的存款保险令

原文始发于微信公众号(瑞中法协):伊斯兰银行的存款保险令


摘要



印度尼西亚存款保险公司(“ LPS”)宣布了2020年第1号条例,该条例关于伊斯兰银行的存款保险和银行决议的实施政策。LPS可以在以下权限下对失败银行进行处理和解决:a)接管并行使股东的所有权利和权力,包括失败银行股东大会的权利和权力;b)拥有和管理被营救的失败银行的资产和负债;c)审查,撤销和终止和/或更改被挽救的失败银行与第三方之间的任何合同,而这对失败银行造成了负担;d)未经债务人同意,出售和/或转让失败银行的任何资产,和/或未经债权人同意,出售或转让失败银行的债务。


该条例特别规定,伊斯兰银行的存款保险应使用卡法拉(Kafalah)合同进行。卡法拉意味着代表他人承担责任或提出为他人谋利的职责。在此问题上,LPS将充当担保人(Kafeel),伊斯兰银行将充当债务人(Makful’anhu),在伊斯兰银行中有储蓄存款的客户应充当债权人(Makful lahu)。本文作者Mirza A. Karim为印度尼西亚Karim Syah律师事务所合伙人,为《瑞中法律评论》投稿。



DEPOSIT INSURANCE AND BANK RESOLUTION

FOR ISLAMIC BANKS


Lembaga Penjamin Simpanan or Indonesia Deposit Insurance Corporation (“LPS”) has announced Regulation No. 1 of Year 2020 on Implementation Policies of Deposit Insurance and Bank Resolution for Islamic Banks. LPS is a legal entity established by the Government of the Republic of Indonesia under Law No. 24 of Year 2004 (“LPS Law”), with the following tasks: 

  1. to formulate and determine implementation policies for deposit insurance; 

  2. to implement the deposit insurance program;

  3. to formulate and determine policies in order actively to participate in maintaining the stability of the banking system;

  4. to formulate, determine, and implement the resolution policy for Failing Banks that do not have a systemic effect on the economy; and

  5. to perform the handling of any Failing Bank that has a systemic effect.  


LPS may carry out the handling and resolution of a Failing Bank under the following authority: 

  1. to take-over and exercise all rights and powers of the shareholders, including right and power of the General Meeting of Shareholders of the Failing Bank; 

  2. to possess and manage assets and liabilities of a Failing Bank that is being rescued; 

  3. to review, annul and terminate and/or alter any contracts between the Failing Bank that is rescued and third parties, where such are burdensome to the Failing Bank; 

  4. to sell and/or transfer any assets of the Failing Bank without debtors’ consent and/or the Failing Bank’s liabilities without creditors’ consent.


The above mentioned LPS’s authorization is an implementation of the concept of al-Wisayah, i.e.: the executorship of certain government’s authorization by a party who is appointed by the government.   


The LPS Law stipulates that any bank which operates within the territory of the Republic of Indonesia is obligated to become a member of the Deposit Insurance conducted by LPS.  


Recently LPS has announced Regulation No. 1 of Year 2020 (“LPS Regulation No.1/2020”). LPS Regulation No. 1/2020 was issued to accommodate the implementation of deposit insurance and bank resolution in order to meet the Shariah compliance requirements.

Deposit insurance for Islamic banks shall be conducted using a Kafalah contract. Kafalah means the assumption of responsibility on behalf of others or the presenting of curatorship for the benefit of others. In this matter, LPS shall act as the Guarantor (Kafeel), Islamic banks shall act as the Debtor (Makful’anhu) and customers who have saving deposits in Islamic banks shall act as Creditors (Makful lahu). 


The LPS Law provides for the types of deposits which are insured, i.e.: bank deposits in the form of current accounts, term deposits, savings accounts, and/or other forms of deposits that are treated equivalently with those mentioned earlier. LPS Regulation No.1/2020 elaborates the types of deposits which are insured in Islamic banks, i.e.: 1) Wadiah current account, 2) Mudarabah current account, 3) Wadiah saving accounts, 4) Mudarabah saving accounts, 5) Mudarabah term deposits, and 6) other deposits based on Shariah principles determined by LPS. The insured deposit limit for each depositor per bank is Rp. 2,000,000,000 (two billion Indonesian Rupiah, approximately the equivalent of US $ 140,000.00, depending upon exchange rate at the time).


LPS Regulation No. 1/2020 also provides for methods of handling and settlement of Failing Banks. LPS may proceed with handling or settlement of Failing Banks only after the Financial Services Authority (“OJK”) or the Financial System Stability Committee (“KSSK”) hands-over the handling or resolution of the Failing Bank to LPS.  

The handling or settlement of a Failing Bank shall be performed through one or more of the following methods:

a. transferring parts or all assets and liabilities of the Failing Bank to a Receiving Bank; 

b. transferring parts or all assets and liabilities of the Failing Bank to a Bridge Bank established by LPS;

c. temporary placement of capital into the Failing Bank by LPS;

d. liquidation of the Failing Bank.   

    

The Receiving Bank and the Bridge Bank, as stated above, must have a valid business license which allows them to run banking business activities in accordance with the Shariah principles.


Transferring parts or all assets and liabilities of the Failing Bank to a Receiving Bank or a Bridge Bank must be conducted using a Hawalah contract. Hawalah is a transfer of a debt liability from the transferor to the payor. The effect of Hawalah is that the creditor can no longer claim the debt from the original debtor since the claim should be made against the new debtor named in the Hawalah contract. In this manner, LPS, after receiving the hand-over of the Failing Bank’s liabilities and assets from the authority, as mentioned above, shall transfer the liabilities of the Failing Bank to a Receiving Bank or a Bridge Bank using a Hawalah contract. Upon such transfer of liabilities, LPS shall hand-over the assets of the Failing Bank to the Receiving Bank or the Bridge Bank. If the value of the assets is less than the value of the liabilities received by the Receiving Bank or the Bridge Bank, LPS shall pay a top-up to the Receiving Bank or the Bridge Bank. If the value of the assets is more than the value of the liabilities, the Receiving Bank of the Bridge Bank shall pay the balance to the Failing Bank.


If LPS decides to liquidate the Failing Bank, the following provisions shall apply: 

  1. fixed assets and inventory shall be transferred to a third-party through a sale and purchase contract (al-bay’). 

  2. assets arising from a financing facility where the bank still owns the assets (such as financing facility using Musharakah, Mudarabah, Ijarah Muntahiyya Bittamlik or Musharakah Mutanaqisah contract) can be transferred to a third-party using a sale and purchase contract.

  3. assets in the form of receivables arising from Qardh, Murabahah, Ijarah contract, can be transferred using the mechanism of exchange of goods, since under the Shariah principles, a receivable cannot be transferred using sale and purchase contract.

  4. transfer of assets in bundling, as mentioned in points a, b and c above, may use the mechanism of sale and purchase contract, provided that the value of the assets mentioned in a and b above constitutes 51% or more of the total assets to be sold. If less than 51%, an opinion from the Shariah Committee is needed. 


The said sale and purchase contract shall be made as “a true sale”, which means that LPS has no obligation to buy-back the assets that have been sold. The Receiving Bank is obligated to conduct due diligence over the liabilities and assets to be purchased, and the Receiving Bank should agree to receive such liabilities and assets in an “as is” condition. 


The transfer of liabilities and assets arising from a financing facility contract does not require approval nor consent from the bank’s customers. The Receiving Bank or the Bridge Bank need only to send notification regarding such transfer to all customers.     

      

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