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Law of Banking and Security

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Law of Banking and Security LawLaw ofof BankingBanking andand SecuritySecurity DR.DR. ZULKIFLIZULKIFLI HASANHASAN 2020 th SeptemberSeptember 20112011 WeekWeek IIII ContentContent AnAn overviewoverview ofof modernmodern financialfinancial managementmanagement ofof banking,banking, nonnon --bankbank financialfinancial intermediariesintermediaries andand financialfinancial markets.markets. TheThe developmentdevelopment ofof bankingbanking andand financialfinancial institutionsinstitutions inin Malaysia.Malaysia. IntroductionIntroduction MalaysiaMalaysia hashas aa uniqueunique legislativelegislative frameworkframework consistingconsisting ofof mixedmixed jurisdictionsjurisdictions andand mixedmixed legallegal systemssystems namelynamely thethe commoncommon lawlaw andand shariahshariah .. TheThe growthgrowth andand developmentdevelopment ofof bankingbanking industryindustry areare supportedsupported throughthrough goodsgoods governancegovernance andand itsits comprehensivecomprehensive legallegal frameworks.frameworks. Financial System Non-Bank Banking Financial Financial System Intermediaries Markets Financial System Banking Capital Market Insurance Private/Public Money Conventional Conventionatial Debt Securities Market Islamic Stock Exchange Derivative Islamic BankingBanking SystemSystem MonetaryMonetary InstitutionsInstitutions -- CentralCentral Bank,Bank, MonetaryMonetary authority,authority, CommercialCommercial Banks.Banks. NonNon --monetarymonetary InstitutionsInstitutions -- FinanceFinance Co,Co, MerchantMerchant BanksBanks andand DiscountDiscount Houses.Houses. NonNon BankBank FinancialFinancial IntermediariesIntermediaries DevelopmentDevelopment FinancialFinancial InstitutionsInstitutions -- BankBank PembangunanPembangunan ,, BKRBKR SavingSaving InstitutionInstitution -- NationalNational SavingSaving BanksBanks andand CreditCredit CooperativeCooperative ProvidentProvident andand PensionPension FundFund --EPF,EPF, PensionPension TrustTrust Funds,Funds, LTAT.LTAT. InsuranceInsurance CompaniesCompanies -- ConventionalConventional andand IslamicIslamic OtherOther FinancialFinancial IntermediariesIntermediaries -- MBSB,MBSB, LeasingLeasing Co.Co. LTH.LTH. FinancialFinancial MarketsMarkets MoneyMoney andand ForeignForeign ExchangeExchange -- MarketMarket forfor securitiessecurities lessless thanthan 1212 monthsmonths toto maturity.maturity. EgEg -- bankerbanker ’’ss acceptance,acceptance, negotiablenegotiable instruments.instruments. CapitalCapital MarketMarket -- PrimaryPrimary andand secondarysecondary securitiessecurities market.market. SC.SC. CommodityCommodity FuturesFutures marketmarket andand financialfinancial futuresfutures marketmarket andand optionsoptions marketmarket -- COMMEX,COMMEX, MDEX.MDEX. BAFIA Deposit Taking Scheduled Institution Non-Scheduled Institutions Institution TheThe DevelopmentDevelopment ofof BFIBFI PhasePhase 1:1: 18401840 --19001900 :: 7 Western banks were established. The Oriental Bank was set up in Singapore in 1846 The Mercantile Bank of India, London and China in 1855, The Chartered Bank of India,, Australia and China in 1859 The Asiatic Banking Corporation and the Commercial Bank of India both in the 1960's, Rhe Nederlandse Handel Matschappij (N. H. M. ) in 1883. The Hong Kong and Shanghai Banking Corporation in 1884. TheThe DevelopmentDevelopment ofof BFIBFI Post 1900 : GradualG emergence of local Chinese banks. The first local Chinese bank,, Kwong Yik Bank, was founded in Singapore in 1903. Kwong Yik (Selangor) Banking Corporation in 1913. The first bank incorporated in KL. Sze Hai Tong in 1906. Chinese Commercial Bank in 1912 Ho Hong Bank in 1917 Overseas-Chinese Bank in 1919. Lee Wah Bank, Bank of Malaya and Batu Pahat Bank in 1920 Ban Hin Lee Bank in 1935 United Overseas Bank in 1935. Malay bank was established in 1947 but it failed in 1952. Bank of Canton in 1953, Bank of America in 1955, Bank of Indonesia in 1955, Bank of Tokyo and Bangkok Bank in 1957 TheThe DevelopmentDevelopment ofof BFIBFI PostPost 19571957 Maybank Berhad and UMBC in 1960. BBMB in 1966. 1983 BIMB: Islamic Banking 1993: BBMB, UMBC and Maybank to open Islamic Banking window :: SPTFSPTF 2004 - Foreign Islamic full-fledged banking license to Kuwait Finance House (KFH), Al- Rajhi Investment Bank, Saudi Arabia and Qatar Investment Group. 2011:2011: 2424 CBCB andand 1717 IB.IB. BNMBNM The idea had been first seriously mooted in the International Bank for Reconstruction Development Mission Report on the Economic Development of Malaya in 1955. The Central Bank of Malaya Ordinance 1958 (replaced by the CBA 2009) and the Banking Ordinance 1958 (replaced by the BAFIA 1989) BNMBNM 22 Objectives:Objectives: 1)1) ToTo promotepromote monetarymonetary stabilitystability andand aa soundsound financfinancialial structurestructure 2)2) ToTo influenceinfluence thethe creditcredit situationsituation toto thethe advantaadvantagege ofof thethe federationfederation The BNM is therefore charge with the task of implementing all the regulations concerned with these matters as laid by the law, as well as issuing policies and directives to further the implementation of these regulations. Where and when certain of the regulations have become inadequate or new or additional regulations become necessary, it is also the Central Bank's responsibility to initiate the formulation of such changes. BNMBNM (a) to issue currency in the Federation and to keep reserves safeguarding the value of the currency (b) to act as banker and financial adviser to the government (c) to promote monetary stability and a sound financial structure SRR: S 36 BAFIA (d) to influence the credit situation to the advantage of the Federation BankBank andand bankbank ““BankBank ”” meansmeans thethe CentralCentral BankBank ofof MalaysiaMalaysia establishedestablished byby thethe CentralCentral BankBank ofof MalaysiaMalaysia ActAct 1958;1958; ““bankbank ”” meansmeans aa personperson whichwhich carriescarries onon bankingbanking business;business; Sabah Development Bank Bhd v SKBS (Sabah) Sdn Bhd & Ors [1992] (1) MLJ 454: Development bank is not a bank and therefore banking license is not a requirement. Cooperative Central Bank v Belaka_Suria Sdn Bhd [1 991] (3) MLJ 43.Cooperative Central Bank is not a bank. RestrictionRestriction onon thethe useuse ofof thethe termterm ““bankbank ”” sectionsection 44 bankingbanking businessbusiness ““bankingbanking businessbusiness ”” meansmeans ——((a)a) thethe businessbusiness ofof ——((i)receivingi)receiving depositsdeposits onon currentcurrent account,account, depositdeposit account,account, savingssavings accountaccount oror otherother similarsimilar account;(ii)payingaccount;(ii)paying oror collectingcollecting chequescheques drawndrawn byby oror paidpaid inin byby customers;customers; and(iii)provisionand(iii)provision ofof finance;finance; oror (b)(b) suchsuch otherother businessbusiness asas thethe Bank,Bank, withwith thethe approvalapproval ofof thethe Minister,Minister, maymay prescribe;prescribe; CommercialCommercial BanksBanks 24 Commercial Banks in Malaysia Largest and most important Provides current account facilities where payments can be effected readily through the issue of cheques. IslamicIslamic BanksBanks 1717 IslamicIslamic Banks:Banks: IslamicIslamic BankingBanking ActAct 19831983 bankingbanking businessbusiness whosewhose aimsaims andand operationsoperations dodo notnot involveinvolve anyany elementelement whichwhich isis notnot approvedapproved byby thethe ReligionReligion ofof Islam;Islam; DevelopmentDevelopment FinanceFinance CompaniesCompanies thethe businessbusiness ofof providingproviding capitalcapital oror otherother creditcredit facilityfacility onon termsterms whichwhich wouldwould requirerequire thethe samesame toto bebe utilisedutilised forfor industrial,industrial, agricultural,agricultural, commercialcommercial oror otherother economiceconomic development;development; andand forfor thethe purposespurposes ofof thisthis definition,definition, ““developmentdevelopment ”” includesincludes thethe commencementcommencement ofof anyany newnew industrial,industrial, agricultural,agricultural, commercialcommercial oror otherother economiceconomic ventureventure oror thethe expansionexpansion oror improvementimprovement ofof anyany suchsuch existingexisting venture;venture; oror DiscountDiscount HouseHouse ReceivingReceiving depositsdeposits onon depositdeposit account;account; thethe investmentinvestment ofof suchsuch depositsdeposits andand otherother fundsfunds ofof thethe institutioninstitution inin MalaysianMalaysian GovernmentGovernment securities,securities, TreasuryTreasury billsbills oror suchsuch otherother investmentsinvestments asas maymay bebe prescribedprescribed byby thethe Bank;Bank; FinanceFinance CompaniesCompanies thethe businessbusiness ofof receivingreceiving depositsdeposits onon depositdeposit account,account, savingssavings accountaccount oror otherother similarsimilar account;account; andand givinggiving ofof creditcredit facilities,facilities, leasingleasing business,business, businessbusiness ofof hirehire --purchase,purchase, includingincluding thatthat whichwhich isis subjectsubject toto thethe HireHire --PurchasePurchase ActAct 19671967 usinessusiness ofof acquiringacquiring rightsrights andand interestsinterests inin aa hirehire -- purchase,purchase, leasingleasing oror otherother similarsimilar transaction.transaction. MerchantMerchant BanksBanks provision of finance (leasing business, lending, purchase of negotiable instruments, guarantee
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