The Subjectivity of the Islamic Sukuk - A Legal Development View

Abstract

In our modern era, the interest in Islamic sukuk has become a major concern. Nowadays, it has become the most important tool to finance various types of projects. Due to the existence of many common legal provisions between sukuk and both shares and bonds, many confuse the legal concept of sukuk with the legal concept of shares and bonds, as some adapt them as shares and others adapt them as bonds, which is neither, and these difference of opinions is primarily due to the lack of clarity of their legal nature and the divergence of views on their legally adopted forms.

Therefore, the importance of this study is to determine the subjectivity of the sukuk without departing from its religious framework, the legal researches that study the sukuk are very few or may be non-existent, most researches related to it are about its religious and economic concept, there is a great paucity of legal research. The problem of this study raises the following questions: What is the legal nature of Islamic sukuk? What is the legal status of the sukuk holder? What are the legal forms of Islamic sukuk? Based on the above, this study aims to demystify the sukuk's subjectivity and framing the correct legal framework through the establishment and development of legal concepts, proposing some legal provisions that help adapt the sukuks to proper legal adaptation. In order to reach the previous objectives, we followed the analytical, descriptive and inductive method, we described the legal nature of the sukuks, identified the legal problems related to its subjectivity, its nature and its legal forms, then we analyzed it the legal analysis based on legal and religious texts, after that, we concluded realistic results that could be applied in practice to show the legal nature of Islamic sukuk and framed its legal framework. The main results of this research are: That the legal nature of the Islamic sukuk is completely different from the legal nature of both share and bond. That the legal status of the holder of the Islamic sukuk is radically different from the legal status of shareholders and bondholders. There are many forms of sukuk, but not all of them are legally considered. Therefore, we recommended that the nature and legal forms of the Islamic sukuk should be regulated in a clear. Finally, we have suggested some suggestions that we hope the legislator, when he legislates the provisions of the sukuk, will adopt them.