Sharia Banking

CHAPTER I

INTRODUCTION

A. Problem Background

In daily life - today, people have needs - needs that must be met both the needs of primary, secondary and tertiary. There are times when people do not have sufficient funds to meet their needs. Therefore, in the economic development of society comes increasingly financing services offered by banks and financial institutions non-bank financial institutions.

Banking institution is one of the aspects set out in Islamic law, namely as part of muamalah governing human relationships. Settings banking institutions in Islamic law is based on the rule of usul fiqh which states that (من لا يتم الواجب الا به فهو واجب), which is something that must exist to complete the mandatory, then it must be held. For a living (ie economic activity) is mandatory held.

Because in this modern economic activity will not be perfect without any banking institution, then this banking institution had become mandatory to be held [i]. Financial institutions is one of the functions of banks, in addition to the function to collect funds from the community. This function is commonly known as financial intermediation (financial intermediary function). This is regulated in Article 1 paragraph (1) Act No.7 of 1992 on Banking. Funding disbursed through two types of banks, namely Bank of Conventional and Islamic Banking.

The system applied in the interest of conventional banks have been disturbing the conscience of Muslims in the world, without exception, Muslims in Indonesia. Interest money in the jurisprudence of usury categorized as such is something that is forbidden by sharia (haram). Fundamental reason behind this is the birth of an interest-free financial institutions, one of which is the Bank Syariah.

Significant difference between the Bank Conventional financing with Bank Syariah according to M. Syafii Antonio is as follows: [ii]

Bank Syariah


Conventional Banks

1. Investments perform the lawful course


1. Investment and haram halal

2. Based on the principle of profit-sharing, selling or renting


2. Wearing the device of interest

3. Profit oriented and Falah


3. Profit oriented

4. Relationships with customers in the form of partnership relations


4. Relationships with customers in the form of creditor-debtor relationship

5. Collection and distribution of funds must be in accordance with Sharia DewanPengawas fatma


There is no similar councils

In operation, the Bank Syariah provide services in a form that is divided into:

1. Musyarakkah

Financing is part of the business capital, which the bank can be involved in the management process.

2. Murabaha

Akad are buying and selling of certain goods to make profits.

3. Mudaraba

The bank is providing financing of capital investment or working capital in full accordance with the principles of results and,

4. Ijara (lease - rent)

Understanding Ijara (leasing) contained in different Islamic banks lease terms in the general practice of the day - day. Rent - rent in everyday practice has three essential elements are:

a. Rents

b. Period / lease

c. Object rent

In a lease transaction - rent is no transition property, which means that if the lease expired the rental objects goods returned to the owner that rents usually do not require services of a financial institution. However, another case in the Islamic banking practices because the known Akad Based Financing Rent - Renting a called Ijara. Therefore the question arises why the lease transaction - rent that is generally not accompanied by the transfer of property that is not necessary financing in Islamic banking practices is accompanied by the financing?

B. Problem Definition:

From the above background related to the development of sharia banking in Indonesia, particularly in Indonesia, particularly in the application of the principles of ijara, then the problem can be formulated as follows:

1. Why would arise in the Covenant of financing Rent - Renting In Islamic Banking Practice?

2. Where is the juridical basis Akad Based Financing Rental - Renting In Islamic Banking Practice?

C. Purpose

Based on the formulation of the problem raised in this paper, the objectives to be achieved from the making of this paper are:

1. To find out why until the financing comes on the deed of lease in the practice of Islamic banking.

2. To find out where the juridical basis penghaturan Akad financing based on Rent - Renting in the practice of Islamic banking.

CHAPTER II


A. Bank Syariah.

Banks are the institutions have permission to hand over public funds in the form of deposits and channeled funds to the public in the form of loans that serve as intermediaries for customers means that the borrower's surplus is a deficit of funds in financing the business was doing [iii]. Meanwhile, the bank based on Islamic sharia (Islamic Bank) is a system of banking institutions operating under Islamic law. This can be assumed to follow the banking operations and business procedures for business agreements such as that applied by the Prophet Muhammad.

B. Islamic Banking Principles

According to Hari Basuki, the Islamic Bank based on the principles as follows:

1. Prohibition of interest

2. Prioritize and promote trade and buy jaul

3. Justice and brotherhood

Justice in Islam has the following implications:

a. Social justice

b. Economic justice

c. Justice of income distribution

4. Togetherness and please help

5. Encourage each other to improve performance

C. Islamic Banking Objectives

In general, Islamic banking has the objective to develop and improve and maintain the principles prinsi application of Islamic law on financial transactions, banking and the problems associated with the business. Among its aims are: [iv]

a. Banning the practice of usury '

b. Provides its customers with facilities and faslilitas-Islamic banking services with best quality possible

c. Mencapai kemajuan tingkat keuntungan yang cukup demi perkembangan perbankan itu sendiri

d. Developing and Management of memilahara an innovative and competen associated with integration and professional standards of Islamic banking

e. Develop an ability to bermotifasi in savings to the ethics of honest business partners

f. Collect, manage and distribute zakat administration and infaq and Sadaqah

Based on the function of banks in Indonesia can be classified on:

1. Namely the central bank Bank Indonesia, as in the Act No.13 Year 1968 on the Central Bank, later revoked by Law No. 23 of 1999 on Bank Indonesia.

2. Commercial Banks, the banks that conduct business activities in the conventional and / or based on sharia principles in their activities in providing traffic services payments.

3. People's credit banks are banks that carry out activities in the conventional or based on sharia principles in their activities do not provide services in payment traffic.

4. Banks that specialize to perform specific activities or giving greater attention to certain activities. What is meant by specialized to perform activities including the conduct of long-term financing activities, financing for development cooperation, development of economically weak businesses or small businesses, non-oil export development and housing construction development [v]. Regulation of the banking sector was first regulated in the Act No.7 of 1992, the legislation is not yet a firm hold ririskiky that sharia principles in the banking sector will be allowed but it was already mentioned implicitly. This can be seen from Article 6 letter b and m Act No.7 of 1992 are:

- Giving credit; and

- Providing financing to its customers based on the principle of profit sharing in accordance with the provisions adopted in government regulations [vi]; In addition, one set of business activities that people's credit banks "

provides financing for customers based financing principles for the results in accordance with the provisions set out in government regulations ", but in Act No.7 of 1992 still adhered to a single banking system that is reinforced in PP No.72 Year 1992 on Bank Sharing. In the PP, the bank is only allowed to conduct operations in the conventional course of business or for the results, so should not be in a bank to use the services of two principles simultaneously. In 1998 diundangkanlah Act No.10 of 1998 which changed the Law No. 7 / 1992 on Banking, in this law only expressly said that the banking sector in Indonesia consists of two kinds of conventional banks and banks based on sharia principles in both banks and people's credit banks

D. Financing Overview

Financing is one of the bank's main task, namely providing facilities for provision of funds to meet the needs of the parties who are deficit units. According to the nature of the use of financing can be divided into 2 of the following:

1. Financing productive, which is funding for production needs in a broad sense, namely to increase the business, whether production, trade, and investment. According to the needs, financing productive can be divided into 2 of the following:

A. Working capital financing, the financing to meet the needs of:

(a). Increased production, both quantitatively, the amount of production, as well as qualitatively, namely to increase the quality or the quality of production; and

(b). For the purposes of trade or increase the utility of place of an item.

B. Investment financing, which is to meet the needs of capital goods (capital goods) as well as facilities closely related to that.

2. Consumer financing, the financing used to meet consumption needs, which will be used up to meet the needs. Consumer financing needed by the user of funds to meet consumption needs and will be been used to meet those needs. Consumption needs can be distinguished on the primary needs (basic or primary) and secondary needs. Primary needs are basic needs, both in the form of goods, such as food, beverages, clothing, and shelter as well as the form of services, such as basic education and treatment. The secondary needs is an additional requirement, which is quantitatively and qualitatively higher or more luxurious than the primary needs, whether it be goods, like food and beverages, clothing / jewelry, home building, vehicles, etc., as well as a service, such as education, health care , tourism, entertainment, etc. [vii].

In general, conventional bank credit limit for the fulfillment of certain goods that can be accompanied by a valid proof of ownership, such as houses and vehicles, which later became the main insurance products (main collateral). As for the service needs, the bank asked for collateral in the form of other goods that can be tied up as collateral. Source of repayment of the financing comes from other revenue sources and not from the exploitation of goods financed from this facility.

Islamic banks can provide commercial financing for the fulfillment of consumer goods as follows: [viii]

1. Al-Bai'bitsaman ajil (a form of murabaha) or sale and purchase in installments.

2. Al-ijara al-muntahia bit tamlik or lease-purchase.

3. Al-Musyawarakah mutanaqhishah or Decreasing participation, which the bank gradually decrease the number of participation.

4. Ar-Rahn to meet service needs.

E. Financing the Sharia Banking Practice

In the successful distribution of funds collected from customers or the public, Islamic banks offer some banking products as follows:

1. Mudaraba Financing

Bank is providing financing of capital investment or working capital management (trusty financing), while the customer provides a complete project or business with the management. Results profits and losses suffered or incurred distributed clients with between banks and borrowers in accordance with the provisions of collective agreement. Mudaraba principle used in banking to receive deposits from customers, either in the form of savings or deposits and also for the financing.

The pillars and the conditions are as follows:

Pillars Mudaraba:

a. There Shahibul Maal (capital / customer)

b. Existence mudarib (business / banks)

c. The existence of charity (business / employment)

d. The existence results (for the results / benefits) and

e. Existence aqad (ijab-qabul)

2. Musharaka financing

Musharaka financing is financing part of the business capital, which banks may be involved in the paid up manajemennya.modal can be money, goods trade (trading asset), property, equipment or intangible assets (such as patents and goodwiil) and goods others that can be valued by money.

The types of al-Musharaka, among others: [ix]

a. Shirkah al 'inan, is a contract two or more people. Each party gives a portion of the overall fund and participate in the work. Both parties share profits and losses as what has been agreed.

b. Shirkah mufawadhah, is the cooperation contract between two people or more. Each party gives a portion of the overall fund and participate in the work. However, the main requirement is to similarity of funds provided, work, responsibility and burden of debt divided by each party.

c. Shirkah A'maal, is the cooperation contract with two professionals to accept the same job and share the benefits of the job.

d. Shirkah Wujuh, is a contract between two people or more who have a reputation and prestige as well as well as experts in the business.

e. Shirkah Muhharabah.

3. Murabaha financing

Murabaha financing in terms of fiqh is the covenant of good trading tertentu.dalam those buying or selling, the seller clearly mentions that traded goods meant the purchase price and profits taken.

Murabaha is the technical banking covenant between the bank's trading as the bank providers with customers who order to buy goods. The pillars and the conditions as follows:

Pillars Murabaha:

a. Seller

b. Purchasers

c. Goods for sale

d. Price and

e. Ijab-qabul

4. Financing Al-Bai 'Bithaman Ajil

Financing Al-Bai 'Bithaman Ajil is the financing for the purchase of goods by installments. Basic requirements of these products is similar to murabaha financing. The difference between them lies in the way of payment, where payments on the financing murabaha fulfilled after the loan duration, while the financing of Al Bai'Bithaman Ajil new installments after the consignee customers are able to show the results of his efforts.

5. Salam Financing

Financing Salam applied in the form of short-term financing for the production of agro-business or other types of industries. Salam can mean the purchase of goods delivered in later days as the payment made in advance.

Pillars of Bai 'Salam: (1) Muslam / Buyer; (2) Muslam Ilaih / Seller; (3) Capital or money; (4) Muslam FIH; (5) Sighat or utterance [x].

6. Financing Isthina '

Financing Isthina 'was applied in the form of manufacturing cost, small-medium industries, and financing isthina implementation konstruksi.dalam can be done in two ways, namely the bank specified by the manufacturer or the manufacturer is determined by the customer. Implementation of either of these ways should be determined in advance in the covenant by both parties.

Isthina 'is a sales contract between the buyer and the manufacturer of goods. In this contract, manufacturers receive orders from buyers. Manufacturers and then try the others to make or buy goods according to specifications that have been disepekati and sell them to buyers end. Sedankan payment is made by agreement between both parties. [Xi]

Terms Shah Bai 'Isthina': (1) Any person who becomes the object of the contract must be specified to eliminate the lack clarity about the goods, among types of goods, type, quality and quantity; (2) Price: must be known by both parties and can be paid at the time of the covenant , in installments or ditangguhakn at a particular time in the days to dating. [xii]

7. Lease financing (ijara wa iqtina or bi muntahiyyah ijara tamlik)

Lease financing is a good lease covenant between the customer's bank, where customers are given the opportunity to buy the object at the end of the lease or covenant in the business world is known as finance lease rental rates and the purchase price agreements established with the beginning. In this financing lease which became the subject signaled to goods that are useful and justified by the law and the value of the benefit may be calculated or lease diukur.pembiayaan can be done by:

The first financial institution or leasing company is based on Islamic sharia buy assets that will be purchased by the customer, after bought it, the agency's asset lease period and price specified in the agreement of both parties.

8. Hiwalah

Hiwalah is banking products shari'ah 'ah provided to help suppliers and get the cash capital to continue production. in this case Bank will receive remuneration (fees) for the transfer of accounts receivable services. The amount of compensation to be received by the Bank is determined based on the results of inter-bank agreement with the customer.

9. Rahn

Rahn is one of the treasures held millik the borrower as collateral for the loan he received. Detained goods have economic value. [Xiii]

Banking products is provided to assist customers in pembiyaan multipurpose activities. Rahn as the Bank loan products meant only a return for the storage, maintenance, insurance and administration of the pawned goods. regarding the case tersbut, Rahn products used only for social purposes such as education and health [xiv].

10. Ijarah

Al-Ijarah Al derived from the word - which means Ajru means Al'Iwadhu or replace. In Arabic, Al-Ijarah is defined as a kind of covenant to take advantage by replacing some money. Definition of the principle of Ijarah [xv] also has diatuir in positive law in Indonesia that is Article 1, paragraph 10 of Bank Indonesia Regulation No. 7/46/PBI/2005 which defines the principle of ijarah as "transaction rent - rent for a goods and / or wages - paid for a service business within a certain time through lease payments or service fee. "Until now, the major Islamic financing products itas still focused on products murabaha (the principle of sale and purchase). murabaha financing actually has in common with ijarah financing, both included in the category of Natural certainty contracts, and is basically buying and selling contracts. what distinguishes them is the object of the sale transaction, the financing murabaha, which is the object of transactions are goods, such as houses, cars and so on. whereas in ijara financing, the transaction is the service object, whether the benefits of goods and benefits on labor. If the financing murabaha Islamic Bank can only serve the needs of the customer to have the goods, while customers who need services can not be served. With Ijara scheme, Islamic banks can also serve customers who only need services [xvi].

Ijara basically defined as the right to use goods or services to pay a certain return. According to the National Sharia Board Fatwa No.09/DSN/MUI/IV/2000, Ijara is the transfer of rights to the covenant (benefit) of an item or service within a specific time through lease payments / wages, without being followed by the transfer of ownership of the goods themselves thus the akad ijara no change of ownership, but only the transfer of rights to all of the rent to the tenant.

In Islamic banking activities through Ijara financing divided into two namely:

1. Based on the period of the lease or rental of equipment used. Equipment was rented during the growing season until harvest. In Islamic banking known as the Operating Ijarah.

2. Bit-Muntahiyyah Ijara Tamlik in several countries mentioned as Ijara Wa Iqtina 'which means the same as well as the rent and then acquired by the lessee (finance lease) [xvii]

Because Ijara is the covenant that regulate the use of the right to use without the transfer of ownership, so many people generalize ijara with leasing. This is because the two terms both refer to things - particulars of the lease. Because of the general banking activities are not allowed to do leasing, then just take the Sharia banking Muntahiyyah Bit-Ijara, which means Tamlik agreement to use (lease) of goods between the Bank with the customer and the end of the lease, the customer must buy the goods he had rented.

2. Type Goods Goods Bittamlik Ijara Muntahiyyah leased to customers who generally type of fixed assets or fixed assets such as buildings (buildings), office machines, tenements (tenements), or chattels that have specific fixed [xviii].

3. Pillars and Conditions Muntahiyyah Bittamlik Ijarah

1. Pillars

a. Renters (musta 'JiR)

b. Owner of goods (mu'ajjir)

c. Goods or leased object (ma'jur)

d. Price rent / lease benefits (ajran / ujran)

e. Ijab qabul

2. Terms

a. Parties telibat mutual pleasure to each other

b. Ma 'jur (goods or objects rent)

- Benefits are justified or legitimate religion.

- Benefits can be assessed and measured or calculated.

- The benefits can be given to the charterer

- Ma 'jur must be purchased musta' JiR [xix]

F. Judicial Reviews Akad Based Financing Rent-Rent The Sharia Banking Practice.

In the field of civil law principle of Ijarah principle known as rent

- Hire. Definition of a lease granted by the Civil Code Article 1548 KUH is "an agreement by which one party to bind himself to the other party the enjoyment of something good for a certain time and the payment of a price by the latter party was affordable payment. "

According to the National Sharia Board Fatwa, ijara is a covenant for the transfer of rights (benefits) for a good or service within a specific time through lease payments / wages, without being followed by the transfer of ownership of the goods themselves. [Xx]

In No.7/46/PBI/2005 Bank Indonesia Regulation has set conditions for the various Islamic banking products in the form of union funds and / or distribution of funds. With regard to the collection of funds has to be regulated savings deposit, which wadiah checking, and savings deposits are also wadiah investments, namely: giro mudaraba, savings and time deposits mudaraba mudaraba. In the field of distribution of funds, Bank Indonesia Regulation has been referred to in Article L6 set up by Article 18 of Bank Indonesia Regulation No.7/46/PBI/2005 that the product - the product distribution of funds in the banking shar iah Mudaraba, Musharaka, Murabaha, Salam, Istishna ', Ijarah and Ijarah and Muntahiyya Qard Tamlik Bit.

As a follow-up of Bank Indonesia Regulation, a lease which is also called ijara further stipulated in the Decree of Bank Indonesia Board of Directors of No.32/34/KEP/DIR Banks Based on Sharia Principles, especially in article 28 which states that banks are required to apply Sharia Principles in conducting its business activities include:

a. Collects funds from the public in the form of savings, namely:

1. Giro based on the principle wadiah;

2. Savings based on the principle or mudaraba wadiah;

3. Time deposits based on the principle of mudaraba; or

4. Other forms based on the principle or mudaraba wadiah

b. Doing the distribution of funds through the sale and purchase transaction based on the principle:

1. Murabaha; 2. Istihna; 3. Ijarah; 4. Salam; 5. Jual beli lainnya

G. Sharia banking in Indonesia

The presence of Islamic banks in the system 1992 in accordance with the Law No.. 7 / 1992 on banking. However, this Act provides the legal basis yet powerful enough for the development of sharia banks because not explicitly set on the existence of banks based on sharia principles, but for the results. Understanding of the results intended in the Act is not properly include the notion that Islamic banks have a wider scope than just the outcome. Similarly, the operational conditions, until the year 1998 have not yet operational legal devices that specifically complete set of sharia banking activities (Day of Dhani Basyuki Gunawan Idhat: 2003).

Enabling Law No. 10 of 1998 concerning the change Act No.7 of 1992 on banking followed by a number of provisions in a decree implementing the BI Board of Directors has provided the legal basis for a stronger and wider opportunities for the development of sharia banking in Indonesia, perundan legislation provides an opportunity wide to develop Islamic banking network, among others through the opening of a branch office license sharia (KCS) by conventional banks. Moreover Act No.. 23 of 1999 concerning Bank Indonesia BI also assigned to prepare sets of rules and supporting facilities that support the Islamic banking operations. Both the Act on the legal basis dual banking system implementation in Indonesia. Dual banking system is referred to the implementation of the two banking systems (conventional and syariah). Alongside the implementation of which is set in a variety of laws and regulations. [1]


CHAPTER III

Conclusion

Practice rent - rent in the general transaction is not accompanied by the transfer of property rights. When accompanied by the transfer of property transactions is called the lease - purchase. The lease - purchase (leasing) financing of provision of services generally provided by non-financial institutions - banks / finance. In Islamic banking practices, akad rent - rent is called Ijara. Akad rent - rent (Ijarah) in the development of sharia banking can be accompanied by the transfer of property is called Ijara Muntahiyyah Bit - Tamlik (IMBT).

Although such looks similar to the practice of leasing conventional financing, but in Islamic banking there is a distinction, ie, if the object lease benefits only apply to the goods only, while at the Ijara Muntahiyyah Bit - Tamlik object can be either goods or services / labor.

REFERENCES

A. Karim, Adiwarman, Bank Islam Fiqh and Financial Analysis, RajaGrafindo Persada, Jakarta, 2006.

Antonio Shafi'i, Muhammad, Islamic Banking from Theory to Practice, Gema Insani Press and Tazakia Cendikia, Jakarta, 2001.

Basuki, MS, Day, Islamic banking "concept and operations, Paper presented at" Masa'ilul Fiqiyah "Ayarif UIN Hidayatullah, Jakarta, 2003.

Chairi, Zulfi, implementation of Sharia According to Credit Banking Act No.10 of 1998, e-USU Repository, 2005.

Ghofur Anshori, Abdul, Development Banking Law in Indonesia, Islamic Banking lecture material, Master Kenotariatan, Faculty of Law, Gadjah Mada University, Yogyakarta, 2006

Hasan Ahmad Hamoud, Sami, Tathwiir al-A'mal al - Mash - rafiyyah bima Yattafiqu wasy-Sharia al-Islamiyya (Amman: al-Sharq Matbaatu wa Maktabatuha, 1982).

Sabiq, Sayyid, Sunni Jurisprudence Volume 13, over the language Kamaluddin A. Marzuki, PT. Alma'arif, Bandung, 1995

Hendry, Arisson, et al., Sharia Banking Practitioner Perspective, Muamalat Institute, Jakarta, 1999

[1] Hari Basuki, MS op.cit Hal: 18

[i] Adiwarman A. Karim, Bank Islam Fiqh and Financial Analysis, RajaGrafindo Persada, Jakarta, 2006, pp. 14 to 15

[ii] Muhammad Shafi Antonio, Bank Syariah from Theory to Practice, Gema Insani Press and Tazakia Cendikia, Jakarta, 2001, pp. 34

[iii] Hari Basuki, MS, Islamic banking "concept and operation, 2003, pp: 2

[iv] Ibid pp: 7

[v] Zulfi Chairi, implementation of Sharia according to Credit Banking Act No.10 of 1998, e-USU Repository, 2005, pp. 3

[vi] Abdul Ghofur Anshori, Development Banking Law in Indonesia, Islamic Banking lecture material, Master Kenotariatan, Faculty of Law, Gadjah Mada University, Yogyakarta, 2006, pp. 5-6

[vii] Muhammad Shafi Antonio, op.cit, pp. 168

[viii] Sami Hasan Ahmad Hamoud, Tathwiir al-A'mal al - Mash - rafiyyah bima Yattafiqu wasy-Sharia al-Islamiyya (Amman: al-Sharq Matbaatu wa Maktabatuha, 1982).

[ix] Hari Basuki, MS op.cit Hal: 13

[x] Day Basuki, MS ibid: 11

[xi] Hari Basuki, MS op.cit pp. 11

[xii] Ibid pp. 11-12

[xiii] Ibid pp. 14

[xiv] Zulfi Chairi, op.cit, pp. 12

[xv] Sayyid Sabiq, Sunni Jurisprudence Volume 13, over the language Kamaluddin A. Marzuki, PT. Alma'arif, Bandung, 1995, pp. 15

[xvi] Adiwarman A. Karim, op.cit, pp. 137

[xvii] Arisson Hendry, et al., Sharia Banking Practitioner Perspective, Muamalat Institute, Jakarta, 1999, pp. 95 Ibid, pp. 96

[xviii] Ibid, pp. 94

[xix] Ibid, pp. 94

[xx] Adiwarman A. Karim, op.cit, pp. 138