چکیده:
بحرانهای پولی ناشی از فعالیت مؤسسات پولی در سیستم بانکداری، موجب شده است که بانک مرکزی اقدام به الزام ادغام مؤسسات پولی کند. این روش علاوهبر اینکه خسارات هنگفتی به منافع عمومی و خصوصی، مانند سپردهگذاران و سهامداران مؤسسات اعتباری وارد کرد، موجب بروز مشکلات حقوقی مهمی مانند خلأ قانونی، عدم صلاحیت و عدم کارایی و عدم رعایت حقوق ذینفعان شد. در این مقاله که به روش توصیفی تحلیلی انجام گرفته، با پاسخ به این پرسش که ماهیت حقوقی ادغام چیست و اگر یک تصمیم تجاری است آیا واجد کارایی لازم است و در مقررات موضوعه میتوان به آن استناد کرد و ثابت شد که بهجای ادغام دستوری، با تصویب قانون مناسب، باید ادغام بهعنوان یک تصمیم تجاری بهطور قانونی و به انتخاب تصمیمسازان مؤسسات هدف ادغام انجام گیرد تا از سویی هزینة اضافی بر عموم مردم تحمیل نشود و از سوی دیگر، حقوق تمام ذینفعان رعایت شود.
they eventually imposed a heavy monetary cost on the Central Bank and the
national economy. This was because they faced a liquidity deficit and were
thus not able to repay the deposits on depositors’ demand. The Central Bank
handled this problem by creating an unsecured line of credit to pay the debts
of these institutions from the public fund, which led to the devaluation of the
national currency and thus reducing the purchasing power and the value of
assets. It also surfaced numerous legal problems such as the legal gaps, the
incompetence and inefficiency of the enforcement system, and the law’s
failure to safeguard the stakeholders’ rights. Therefore, in this descriptiveanalytical
Monetary crises caused by the activities of unlicensed monetary institutions
in recent years in the Iranian monetary and banking system urged the Central
Bank to mandate the merger of those unlicensed monetary institutions. On
the other hand, according to the extra-legal decision of the Supreme
Economic Coordination Council of the Heads of the Three Branches in
August 2016, some other authorized monetary institutions affiliated with
military organizations, some of which consisted in turn of the orderly merger
of several unauthorized monetary institutions, were required to merge with
the Sepah State Bank. This method, not only severely damaged the interests
of direct and indirect stakeholders of these institutions, such as depositors,
shareholders and employees of monetary institutions, but causes great
damage to the public interest and to individuals through the creation of
money and drastic devaluation of the national currency. Although merger is
not unprecedented in non-monetary institutions, in case of monetary
institutions, due to the their role in the national economy on the one hand
and in gaining public confidence in the credibility of the national currency
on the other, the effects and consequences of integration will be graver and
not limited to companies to be merged, but all the society will be affected by
it. Because the reason for revoking the license of, and merging, most of these
institutions was their financial balance deficit and the loss of public deposits,
article, by examining the transnational regulations of the merger in
the leading countries in this field, the questions will be answered as to what
the legal nature of the merger is, whether it is a business decision, whether it
is necessary and effective, whether it has any place in the current legal
system, and on the other hand, whether the Central Bank and the Supreme
Economic Coordination Council are competent to decide on the merger of
monetary institutions or if they have acted beyond the scope of their legal
authority. The article will argue that the purpose of merger should, as
recognized in countries where it first adopted, be to consolidate the capital
and the labor in order to increase efficiency and productivity, and that it
must take place within the framework of clear rules and regulations. It will
also be demonstrated that in societies with competitive markets, merger is an
optional, rather than a mandatory, event decided based on the economic
interests of the entities involved, that lies in the reduction of costs and
boosting profits. Decided in this way, merger can also serve public interest
by enhancing product quality and competitiveness and ultimately
strengthening the national economy. The article suggests that merger should
not be forced by the governing bodies of the monetary and banking system,
and that these bodies must be legally prevented from such interference, their
role being carefully defined and limited by appropriate legislation. The
decision must be laid with the directors and governing bodies of the
candidate entities so as not to impose additional costs on the public on the
one hand, and to respect the rights of all stakeholder on the other hand.