مجله حقوق بانکی
پیاپی 1 (بهار و تابستان 1391)

With ever-increasing expansion of electronic banking, one of the leading problems bank encounter is the methods of secure archiving and maintenance of electronic records from one side and solving the difficulties arising from it from the other side. Particularly concerning Fifth program of development Act(part a, 46 section) which has bind the banks to establish a centralized banking system thoroughly, secure maintenance of electronic records and prediction of legal problems arising from that, has been more important since the establishment of such a system is merely possible by electronic methods. The electronic commerce law (2003) described secure electronic records as well as conditions of maintenance of electronic records. Nevertheless, mentioned rules have no responded all legal questions propounded in this case. The writer of this article plants to describe the concept and kinds of filing and electronic maintenance followed by the studying the terms of their secure maintenance. At the second stage, the dominant principals of secure maintenance of electronic records should be taken into consideration and finally determine the commitments of the banking system as well as the people in charge of processing and maintenance the electronic documents and records. Since the Iranian legal rules in term of secure maintenance of electronic records have lots of defects whereas the French law has comprehensive and appropriate legal principles in this field, French law has been set as a base for assessment of intern legal rules.

Documentary credit is considered to be intensely used as a method of payment in internalas well as international trade, as a result followingly brings some rights and obligations for involved parties. Considering inconclusive discussions about the legal nature of documentary credits, the question seeked to be responded in this paper is which of the recognized legal arrangements in the dominant legal systems, documentary credit together with its rules and legal effects as a whole, belong to. Here, after a brief study of the documentary credit construction, adversarial previous comments put forward in respect to its legal nature, will be criticized and eventually the author’s approach accompanied by reasons is discussed. Note that the term documentary credit as used in this paper refers to this specific concept: the issuer’s obligation to the beneficiary.

The characteristic feature of the relationship between applicant and bank is that the bankissues the guarantee for the risk and account of the applicant. because of this, the bank has to issue the guarantee in a manner and with terms and conditions as instructed or agreed to by the applicant. based on this principle that, right to repayment exists, however, on the assumption that the bank has properly carried out the instructions of the applicant, Breach of this duty debars the bank from claiming reimbursement. European law classifies the relationship between applicant and bank as a mandate. this classification can be accepted in our law too. but, Because of the the fact that a mandate may relate to a wide range of very dissimilar contracts, one should be cautious when considering applying particular rules of mandate in relation to specific issues which may arise in the context of independent guarantees.

Risk is an inevitable category in banking. Market changes, macroeconomic variables effects,efficiency of law and so on are increasing risk of banking operations. In order tothis, researchers shouldput into effect proactive management of banking risks. Islamicbanking for reasons such as prohibition of riba, shariah compliance and complexity ofIslamicfinancialtools in comparison with conventional banking having been exposed tohigh level of risks and in order to globalization of financial markets and banks competition,Islamic banks should use more efficient mechanisms for risk management. For thispurpose, from the point of view of risk managementfirst we explain Islamic bankingcharacteristics and its differences with conventional banking, then classify common risksbetween conventional and Islamic banking and study unique risks for Islamic banking.Finally present some conclusions and suggestions.