الصكوك وأحكامها في الفقه الإسلامي :دراسة تأصيلية

Abstract

This research aims to provide a Taʼṣil Fiqhi to practices of Sukuk as actually applied in the financial market, namely in the stages of issuance, trading, distribution of profits or losses, and redemption, including issues of risk management and collaterals. The research relies on the inductive method to study particular issues affiliated to practices of Sukuk, from the perspective of Fiqhi provisions. The research proceeds by depending on the analytical deductive methodology to choose the most correct provisions according to the scientific al-tarjiḥ rules. Part I discloses the identity of Investment Sukūk and what distinguishes it from the stocks and bonds in the financial markets. It also presents a historical analysis of the emergence of Sukuk and its development to reveal the potential reasons behind its Fiqhi problems. Then it moves to clarify basic particulars that characterize Sukuk, shed light on its economic advantages and the different types within Fiqh perspective. Sukuk is considered one of the most important contemporary economic instruments in attracting savings and investing them within the Shari'ah frame in order to achieve the desired development goals and satisfy the needs of the general Muslim taking them away from risks of shares and usury of bonds. Hence, the research concentrates on illustrating the extent to which Sharia is paying attention to attracting savings and directing them towards investment fields. Investment of savings, instead of hoarding practices, is one of the most important Sharia Maqasid. This reveals the importance of the role that can be played by Sukuk and the necessity of taking Sukuk away from wrong practices. Part II deals with the concept of Sukūk issuance, and the statement of how it is done and the provisions of its entangled contracts. Thus it deals with Taʼṣil Fiqhi to the issuance and trading of Sukūk of ownership of leased assets, and highlights the standard of real transaction of ownership from originator to Sukuk holders. Also, the research is keen to present Taʼṣil Fiqhi to the issuance and trading of Sukuk of benefits, Sukuk of services and Sukuk of partnership. Besides, it deals with the provisions of Taskik of debt, whether alone or in a mixture of assets, benefits and services. Part III devotes Taʼṣīl Fiqhī to the provisions of risk management issues, the rules of distribution of profits or losses, and redemption of Sukūk by sale or termination or due to the failure of originator of Sukūk to meet his obligations. The research reaches a number of significant conclusions and recommendations; most important of them is that the essence of the imbalance in Sukūk at present lies in mimicking the traditional bonds in order to be marketable in global markets. The research recommends development of Sukūk to remove any practices which are not Sharia compliant and to make Sukuk more efficient in terms of attracting savings from small savers in Islamic countries, such group has been ignored in most Sukūk issuance although it represents the biggest segment of Muslim nations. Sustainable development can thus be achieved and nations can be saved from resorting to usurious loans or committing tricks to collect financial resources through fake Sukuk that is not different really from traditional bonds..