Güner, Salih

Asset management companies have emerged with the aim of purchasing the non-performing assets of financial institutions, providing liquidity to the institution and freeing these institutions from non-performing assets. The deterioration in the economies of countries from time to time and the consequent deterioration in the economic situation of citizens and financial institutions have led to the establishment of these companies. Although asset management companies emerged earlier in the world, they came to the agenda in our country after the 2001 crisis. Since asset management companies were established with the aim of purchasing non-performing assets from conventional banks at very low amounts and collecting these debts from the original owner, we cannot say that they take into account the prohibition of interest, which is not legitimate according to Islamic law. Therefore, it is not possible to state that the existing asset management companies are legitimate in terms of Islamic law. On the other hand, considering that participating banks may also have problematic assets, there should be a need for an Asset Management Company that conducts interest-free transactions and complies with the principles of Islamic law. In this context, it should be necessary to determine some principles for asset management companies that aim to operate within the framework of the principles of Islamic law. In the history of Islamic law, debt-sale practices have been widely discussed by scholars. The main source of the debate is the hadith narrated from the Prophet (p.b.u.h.), "The Prophet (p.b.u.h.) forbade the sale of debt for debt." As a matter of fact, many opinions have been expressed around this hadith, and it has been stated that the hadith is weak, and although it has been stated that it is weak, there are also opinions that it is true in terms of its meaning. On the other hand, there are also disagreements about which of the debt-selling practices the hadith covers. Some scholars accepted the hadith as absolute and did not allow any debt to be sold in any way. Some scholars, on the other hand, have narrowed the scope of the hadith and stated that it is not permissible to engage in debt-sale practices that create an interest transaction or where the transaction does not benefit people. The Hanafi madhhab has never authorised the sale of debt on the grounds that it is not deliverable. Although the Shafi'i madhab has such a view as a sect, it has experienced individual disagreements on the issue of purchasing the debt in cash in exchange for goods. The Maliki madhhab is more moderate than these two madhhabs in the practice of selling debt. As a matter of fact, it has adopted the view that it is possible to sell the debt to the debtor himself or to a third party in exchange for a good or benefit, with some conditions. The scholars who act most freely on this issue are Ibn Taymiyya and his student Ibn Qayyim al-Javziyye. According to these two scholars, the sale of debt forbidden by the aforementioned hadeeth is the sale of a new debt on a deferred basis without the parties having a previous debt in their possession. It is permissible to sell a debt that is fixed in the dhimma, either to the debtor himself or to a third party, in exchange for goods or the benefit of goods. In addition to the views mentioned above, among today's scholars or fatwa committees, some make ijtihad on the view of the Maliki madhab. For example, the Islamic Fiqh Academy and the Advisory Board of the Participation Banks Association of Turkey have expressed the opinion that practices that take place in the form of selling debt to third parties in cash in exchange for a property or the benefit of a property or a service may be permissible. In this article, since it is considered to be a current need, the issues of how an Asset Management Company can operate by the principles of participation finance should be and on the basis of which principles and with which methods it can purchase problematic assets are discussed. In this context, firstly, the practices in the classical fiqh works regarding debt sale practices are analysed and evaluated, and then an asset management company model that operates in accordance with Islamic law is proposed.

Hayat, Zeynelabidin

The Individual Pension System in Turkey (BES) is an optional system through which specialized investment portfolios invest part of the money of people who want to save a certain part of their money on a regular basis in order to obtain these funds developed with a grant from the government after reaching a certain age. Investment portfolio companies invest these funds in investment funds with different investment fields and the subscriber in this system chooses the fund he prefers. Starting in 2008z the participatory financial institutions in Turkey began directing their clients to invest in the joint pension investment funds of traditional companies. And this continued until the middle of 2012z when the first company for individual participatory pension appeared in Turkey, before another company followed suit in 2013. This research dealt with the individual participatory pension system in Turkey in three sections: The first topic talked about the individual pension system in Turkey by giving an overview of its history and the types and expenses of participating in it, and by explaining the differences between it and the social retirement system, and then addressing the advantages and disadvantages of this system. The second topic deals with the individual participatory pension system in Turkey by studying the companies of this system and its investment funds, althrough more than seven years have passed, no third company for individual participatory pension has been established, out of the fifteen companies for individual pension in Turkey. And the participatory investment funds related to individual pension companies reached 53 out of 266 investment funds for individual pension in Turkey as a whole. And the amount of money invested in these funds exceeded 22 billion Turkish liras. As for the third topic, the doctrinal aspect of the individual participatory pension system in Turkey was studied. In it, the jurisprudential rule of the relationship between the parties to the system, including companies, subscribers, mediators, and the state, was mentioned. And it has been shown that paid wakala is the optimal jurisprudential rule for the relationship between individual pension companies and their subscribers. And the same applies to jurisprudential rule of the relationship between the individual pension company and the mediators and between the individual pension company and the state. As for the relationship between the participants themselves, it is considered a profit and loss partnership, while the relationship between the state and the subscribers is a promise of donation by the government to the subscribers. Then, the jurisprudential rule of investment areas for individual participatory pension companies was discussed. These funds are invested either in stocks whic meets the rules and limits set by the Sharia Committee of the Union of Turkish Participatory Banks, or the government and private sukuk, gold and money market instruments traded therein, sukuk and stock traded in foreign currencies, or revenue-sharing bonds. In addition, in this topic, some doctrinal issues related to this system have been discussed, such as making repurchase agreements, forward exchange contracts and swap exchange contracts in the unregulated market (outside the stock market) and in the form of a dating that is not binding on both parties together, and as a control mechanism. And the Sharia committees in the companies of this system, and as the ruling on investing in individual pension investment partnership funds affiliated with traditional institutions, and as the ruling on early withdrawal from the system, and as the ruling on obtaining a pension when retirement is due from this system by subscribing to the annual income insurance.