نقش مداخله کیفری در احکام ورشکستگی و وصول مطالبات بانکی (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
احکام ورشکستگی عادی به علت جنبه های حمایتی به عنوان راهکاری جدید جهت گریز بدهکاران کلان از پرداخت مطالبات تبدیل شده است. اگرچه آرای ورشکستگی کیفری موجب کاهش مطالبات می شود، اما از آنجا که محکومیت کیفری مشمول اشخاص حقوقی نمی گردد، مطالبات بانکی کاهش نیافته است. این نوشتار با روش توصیفی تحلیلی ضمن بررسی قوانین و نقش آن در افزایش مطالبات در نتیجه اقدام متقلبانه بدهکاران بانکی در دریافت حکم ورشکستگی بدون نگرانی از دریافت حکم کیفری به نقش مداخله کیفری در احکام ورشکستگی و تأثیر آن در وصول مطالبات می پردازد. برآیند نوشتار این است که با بازنگری در مقررات موجود و سیاست جنایی افتراقی در مقابله با جرایم یقه سفیدی در مقایسه با جرایم افراد عادی و با بهره گیری از سیاست های جنایی قضایی از قبیل صدور آرای وحدت رویه جدید در جهت پیشگیری از جرایم ورشکستگی کیفری، می توان در این حوزه مطلوب تر عمل نمود.The role of criminal intervention in bankruptcy verdictions and collection of bank claims
Ordinary bankruptcy rulings have become a new way for large debtors to getaway from the payment of claims because of supporting aspects.. Although criminal bankruptcy rulings reduce claims, bank claims have not diminished since criminal convictions do not apply to legal entities. This article uses a descriptive-analytical method to examine the rules and its role in increasing claims as a result of fraudulent actions of bank debtors in receiving a bankruptcy order without worrying about receiving a criminal sentence. The result of this article is that by reviewing the existing regulations and differential criminal policy against white-collar crimes compared to the crimes of ordinary people and by using criminal judicial policies such as issuing unanimous votes, a new procedure to prevent criminal bankruptcy crimes can lead to better results in this fielld. 1.Introduction The purpose of the Bankruptcy Institution in Iranian law is for creditors to receive the largest possible share of their claim in equal proportions, which is achieved through the bankruptcy of the bankrupt and the appointment of a liquidator. The purpose of the inverse legislature and the institution of bankruptcy is to pose a threat to creditors, including banks, and an advantage for debtors to evade debt. Despite the large number of bankruptcy cases in the courts, criminal bankruptcy cases are rarely filed in courts and criminal courts. Therefore, coherently around the important issue. Criminal bankruptcy judgments of the criminal court for guilt and fraud are very low for a variety of reasons, including the judiciary's policy of reducing the incarceration of financial offenders, but this does not mean that its delinquency rate is low. They are not reflected in the statistics. It seems that in this section, a distinction should be made between natural and legal persons, because legal entities did not pay attention to the debts arising from their facilities with banks due to the fact that their managers were not sentenced to criminal bankruptcy, and the issuance of bankruptcy votes was due to fault and fraud. Not only does it not have an effect on the collection of the banking network's claims against these people, but it also causes it to swell and shift the claims from the delinquent class to the suspicious class and from the suspicious class to the burned receivables class. Therefore, it is necessary to examine the relationship between bankruptcy and bank claims. 2.Methodology This article uses a descriptive-analytical method to examine the laws and its role in increasing claims as a result of fraudulent actions of bank debtors in receiving a bankruptcy order without worrying about receiving a criminal sentence. 3.Results and Discussion The judicial procedure in criminal courts in dealing with bankruptcy cases is different from fault and fraud, and most judges in the country are reluctant to issue such sentences due to the policy of de-judicialization and avoiding imprisonment of debtors in financial crimes. On the other hand, some judges consider the criminal liability of legal entities based on the two theories of the mastermind and the responsibility of the employer, but some other judges in the bankruptcy case according to Article 143 of the Commercial Code only consider civil liability and criminal liability in bankruptcy is the fault and fraud of the person. The businessman is bankrupt, not the managers of the company. Therefore, due to the difference of views and the pervasiveness of bankruptcy claims for bank debtors, bank debtors are trying to evade their debts by resorting to this new and complex tactic, and this has led to the volume of such cases in the courts. Ascending and vertical as well as the state of bankruptcy and its effect on the facilities of the recipient and guarantors and affect each other's rights, so in this study to resolve the issue and examine its dark aspects, the relationship between bankruptcy claims To blame and fraud by fulfilling the obligation of bank debtors and the amount of changes in the claims of banks, its effects and results according to the procedure of the prosecutor's office and criminal and legal courts in dealing with criminals. 4.Conclusion The role of criminal intervention in bankruptcy rulings and its effects on the collection of bank claims is very small. Because, as it was stated, despite the fact that the legislator has accepted the criminal liability of legal entities in Articles 19, 20 and 143 of the Penal Code of 1392, but as seen in the statistics of judicial decisions, judges still do not believe in this issue. On the other hand, in connection with the issuance of criminal bankruptcy rulings and bank deferred claims, we must make a distinction because natural persons, in order to avoid conviction and bear the punishment of criminal bankruptcy, mainly pay the debts arising from the facilities in any way possible with banks and try to obtain satisfaction. Banks have, therefore, this reduces the claims of banks on them and establishes an inverse relationship (between the issuance of criminal bankruptcy rulings and bank claims). However, due to the fact that managers are not convicted of criminal bankruptcy and its punishment, legal entities did not pay attention to the debts arising from their facilities with banks and issuing criminal bankruptcy votes not only has no effect on the receipt of banking network claims against these people but also causes inflation. Also becomes. Therefore, by reviewing the existing regulations and differential criminal policy against white-collar crimes in comparison with the crimes of ordinary people and by using criminal justice policies such as issuing unanimous votes, a new procedure to prevent criminal bankruptcy crimes can be done in this area. Acted more favorably. 5.Selection of References Ashoori , M .(2009), Criminal Procedure . Volume 2. Eleventh Edition. Tehran: Samt Publications. [In Persian]. Ardabili, M. A. (2013), General Criminal Law . Volume 1. Tehran: Nashre Mizan Publishing. [In Persian]. Eskini , R. (2016), Business Law . Volume 4. Twenty-first Edition. Tehran: Samt Publications. [In Persian]. Bazgir, Y. (2007), Commercial Law Criteria in the Supreme Court . Second Edition. Tehran: Ganje Danesh Publications. [In Persian]. Bagheri , M. (2020), “Study of Legal Dimensions of Procrastination of Non-Current Receivables in the Iranian Banking System”. Scientific Quarterly Islamic Economics . No 80. pp. 217-244. [In Persian]. Jahed, M. A and Alizadeh, R and Posti , M. (2011), “Bankruptcy through fraud and fault from the Commercial Code to the Islamic Penal Code”. Journal of Legal Research . No 20. pp. 23-44. [In Persian]. Habibzadeh, M.J. (2010), Analysis of Fraud and Betrayal Crimes in Iranian Criminal Law . Second Edition. Tehran: Publication of Dadgostar. [In Persian]. Habibzadeh, M.J. (2017), Exclusive Criminal Law . Fifteenth Edition, Tehran: Samt Publications. [In Persian]. Hassani, H. (2020), Cooperative Law and Commercial Law .Second Edition. Tehran: Mizan Publishing. [In Persian]. Khaleghi, A. (2020), Criminal Procedure . Forty-First Edition. Tehran: Shahrdanesh Publications. [In Persian].
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