چکیده:
A bank account is a credit container created under a contract between an authorized depositor and the account holder, giving the customer the ability to deposit and withdraw money. Under UNCITRAL Model Law on Secured Transactions 2016, there are clear provisions on the creating security right against funds credited to a bank account. According to this law, the account holder can enter into a security agreement without the intervention of the deposit-taking institution. In this case, the security right cannot be effective against the deposit-taking institution unless pursuant to an order of a court or the deposit-taking institution’s consent. If the security agreement is registered in the Registry, it can be invoked against third parties. It is also possible to involve the bank in the creation of the security agreement with a tripartite agreement called a control agreement, which in the latter case, the security agreement can be invoked against third parties without the need for registration. In Iranian law, although it is possible to implicitly derive the certifying to create security right against funds credited to a bank account from Article 21 of the Law on Elimination Barriers to Competitive Production and Improvement of the Financial System of the Country, approved in 2015, which speaks of a special bank account, but the conflict of this article with the provisions of mortgage in the Civil Code and its non-compliance with the general rules of mortgage, this implicit implication will not be able to persuade the legal community to accept the security right against funds credited to a bank account. Therefore, in order to keep pace with developments related to collateral transactions in the international legal system, it is appropriate to fill this legal gap by applying the provisions of the UNCITRAL Model Law.
خلاصه ماشینی:
In the UNCITRAL Model Law on Secured Transactions 4, which was approved by the United Nations General Assembly in 2016, the possibility of creating a security right over funds credited to a bank account 5, which is an instance of non-material or intangible assets, has been foreseen, based on which these funds can be used as an encumbered asset 6 for the perfection of obligations 7.
In Iranian law, not only have no special regulations been foreseen in this regard, but the perfection of funds credited to a bank account also appears to be in conflict with the rules related to the pledge contract in the Civil Code; therefore, in order to address this legal vacuum, in this article, after explaining the concept and nature of funds credited to a bank account, the conditions and how to perfect these funds, as well as its effect on the investment institution and third parties in the UNCITRAL Model Law and Iranian law, will be examined.
According to paragraph 3 of Article 2 of the UNCITRAL Model Law, "bank account means an account maintained by an authorized deposit-taking institution to 5 which funds may be credited or debited".
Effect of the security agreement The effect of the agreement is also ruled in Article 82 of the Model Law under the title "Enforcement of payment"3 as follows: "After a default4 on the secured obligation, a secured creditor who holds a security right over the funds credited to a bank account acquires the entitlement to approach the authorized deposit-taking institution to collect the claim".
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