In 2005, the rapid development of the online payment market was undoubtedly one of the biggest "highlights" in my country's e-commerce field. The amount of online payments in my country will exceed 6 billion yuan throughout the year, and the proportion of online payment users in the number of Internet users has increased from 17% before 2004 to 26%. The market size of online payment third-party service platforms was 160 million yuan in 2001 and increased to 2.3 billion yuan in 2004. It is predicted that the market size of China's third-party payment platform online payment platform will reach about 21.5 billion yuan in 2007.
The emergence of third-party payment platforms reflects the changes in payment methods. As the core achievement of the capital's e-commerce project, Capxin's "Easy Pay" features online payment, telephone payment, mobile payment, SMS payment, WAP payment and self-service terminals. It adopts a secondary settlement model and can achieve daily clearing and daily settlement. In February this year, Taobao, a subsidiary of Alibaba, spent a huge investment of US$30 million to develop and jointly create the "Alipay" transaction service tool with many domestic financial institutions such as the Industrial and Commercial Bank of China and China Construction Bank. On April 7, Tongrongtong Company, a provider of diversified electronic payment applications and services, launched the Yeepay electronic payment platform to enter domestic e-commerce payments. On May 12, Yunwang officially launched the enterprise-level online payment system Pay@Net. On May 20, online banking and VISA International jointly announced the promotion of the 'VISA Verification Service' credit card security payment standard in China's e-commerce online payment market, hoping to improve the convenience and security of online payments. "On July 11, Paypal, the world's largest online payment provider, announced its arrival in China. Although it abandoned the credit card transfers and multi-currency cross-border transactions that Paypal is famous for, this third-party payment platform named "Paypal" still attracted a lot of attention. The attention of peers and the attention of merchants. In October, Tencent launched "Tenpay" to enter the field of online payment. According to rough estimates by relevant people, there are currently no less than 50 institutions providing online third-party payment services!
It can be said that 2005 has become the year of online payment, and the corresponding legal issues of online payment have also received more attention. The focus is mainly on the legal protection of payment security, the assumption of risk liability, and online payment services. regulations, the legality of electronic money, the legality of third-party payment platforms and many other aspects, and the introduction of the People's Bank of China's "Electronic Payment Guidelines (No. 1)" has undoubtedly focused people's attention again. So, How will the "Electronic Payment Guidelines (No. 1)" affect the development of electronic payment in my country, how to understand the emergence and development of third-party online payment service platforms, how third-party payment service platforms should be regulated, and how to build the legal environment for electronic payment. How will this guideline be gradually improved? This article will attempt to discuss
1. Identification of third-party services for online payment
In online payment, both parties are involved. Reaching an agreement with a payment service provider is a typical civil and commercial legal relationship, which falls within the scope of civil legal adjustments. However, since it involves a large amount of user funds and custody for a certain period of time, it will inevitably cause administrative problems. The intervention of supervision is to avoid the risk of unauthorized use of funds and safeguard the interests of the public.
As for the legal issues in the provision of online payment system services by banks, countries generally have corresponding banks. The law clearly stipulates the legal status of banks, the mutual rights and obligations between banks and users, and other related issues. In addition, banks generally stipulate mutual rights and obligations through user agreements when conducting online payment services. In this regard, The problems are not complicated. They mainly involve system failures, electronic message errors, unauthorized payment orders, etc. These problems are generally adjusted by corresponding clauses in the bank's user agreement, regardless of the format clauses of these banks. Appropriate, it can basically be solved using the principles or regulations of traditional laws and an understanding of information technology.
What is more complicated is the law on online payments for e-commerce transaction platforms and third-party payment platforms. Issues such as status are currently confusing for governments, enterprises and users. These e-commerce transaction platforms and third-party payment platforms that provide online payment services have accumulated a large amount of user cash or issued a large amount of electronic payment services. Currency objectively has some characteristics of a bank, and is even regarded as an unregulated bank.
Paypal is an IT technology company without any financial background, but in just a few years it has become a pioneer in the global online payment field, and became the world's largest online payment company on July 8, 2002. The largest C2C trading platform E-bay's online payment service provider. As of March 2005, Paypal has more than 60 million registered users around the world, with sales in 45 countries and regions around the world, with daily transaction volume exceeding 1 million and total annual payments exceeding US$18 billion. Even with such successful operation, Paypal's legal status is still a headache for the United States or other related countries, and its legal positioning is also more tortuous. Since the New York Banking Department concluded in June 2002 that Paypal's services did not constitute illegal banking and issued Paypal a money transfer business license, Paypal has obtained money transfer business licenses in more than 32 states in the United States. These licenses will be of great help to the standardization and rectification of Paypal's business and the enhancement of user confidence. In other parts of the world, Paypal's business expansion faces more uncertainties. In addition to maintaining good cooperation with local financial institutions, it also needs to adapt to a variety of different legal and policy environments.
Paypal stipulates in its early user agreement that Paypal can deposit user funds in accounts opened in banks insured by the Federal Deposit Insurance Corporation (FDIA-insured banks), and users agree that due to this account Any proceeds generated belong to Paypal, and users will not receive any interest or other benefits arising from the funds transferred through Paypal. In the later user agreement of the US website, Paypal claimed that it was the user's agent, an agency that helped users accept payments from third parties and issue payments to third parties; Paypal also strictly distinguished between user funds and Paypal's own funds. It expresses that it will not use user funds for company operations or other purposes, nor will it return funds to creditors in the event of bankruptcy or for other purposes; at the same time, Paypal also makes it clear in the user agreement that Paypal is not a bank, and it provides users with The service is a payment processing service rather than a banking business. Paypal is not the trustee, fiduciary, or a third party that will transfer the user's funds to the transferee when certain conditions are mature, but serves as the user's agent and fund manager. who. It can be seen from its recent user agreement that Paypal positions its relationship with users as a contractual relationship to provide online payments. It is the user's agent and the manager of user funds, rather than any bank or non-bank stipulated in current laws. financial institutions. At the same time, in order to provide online payment services, Paypal must rely on credit card organizations or banking systems to build its own service framework. Therefore, there are also service agreements between Paypal and banks or credit card organizations to clarify the rights and obligations of both parties.
Taobao’s Alipay provides “collection and payment intermediary services” and “third-party guarantee” to Taobao traders, both parties to other online transactions, and even offline traders. The operation process of Alipay is basically similar to Paypal, but due to the impact of the current development of domestic credit cards, the use of credit cards is far less than that of Paypal.
The Alipay User Agreement clearly states that Zhejiang Alipay Network Technology Co., Ltd. provides users with the "Alipay" software service system and the accompanying intermediary services for collecting and paying goods, and in the user agreement Many times it avoids referring to itself as a bank or financial institution. The business scope of the commercial license it obtained indicates that it is engaged in guarantees (according to the approval documents of relevant government departments obtained through public inquiry, it is "guarantee business permitted by national policies, involving license certificate operations") and intermediary business. However, according to the relevant legal provisions of our country, it is not clear which type of business a payment intermediary should belong to, and there are also many doubts about whether it needs approval from the China Banking Regulatory Commission to engage in it. After user funds enter Alipay's account, the ownership issue and the interest generated will bring some troubles to Alipay's legal status and the legality of its business. At present, the attitude of relevant departments in my country is not clear about this.
From the perspective of banking laws in various countries, the ability to operate deposits, loans and currency settlement businesses is usually an important criterion for determining whether an enterprise becomes a bank. Article 2 of my country's "Commercial Bank Law" also stipulates: "This "Commercial banks" as mentioned in the law are corporate legal persons established in accordance with this law and the "Company Law of the People's Republic of China" to accept deposits from the public, grant loans, handle settlements and other businesses. "So, does an electronic financial services company constitute a "bank"? Woolen cloth? Judging from the business essence of an electronic financial services company, the business it engages in is fundamentally different from the bank's deposit and loan business. The bank's deposit and loan business is an independent business of the bank. Although the financial service company also absorbs certain Deposits (such as when customers exchange overdrafts), but this is not an independent business, but is attached to the credit card settlement or electronic money settlement business, and in many cases these businesses of electronic financial services companies are centered on banks For example, a credit card company issues credit cards on behalf of a bank, so an electronic financial services company does not constitute a "bank". Some countries, such as the United States, have allowed such electronic financial services companies to exist as financial organizations. At present, such electronic financial companies in our country do not have corresponding legal status in law. In principle, except for banks, other organizations are not allowed to operate this type of electronic financial services companies. Business-like. In order to promote the development of electronic payment, it is debatable to absolutely deny the entry of non-bank enterprises into the electronic payment business market. The law should not completely prohibit non-bank enterprises from entering the electronic payment business market, but should stipulate certain market access conditions to allow qualified companies enter the market. my country's future electronic payment laws and regulations should clearly stipulate market access conditions for these companies.
In short, with the development of electronic payment, some non-bank enterprises engaging in electronic payment business have become an irreversible trend in the development of electronic payment. This is mainly because the electronic payment business is highly international and technical, and banks are already somewhat unable to do so with their own strength. The emergence of companies specializing in online payment is in line with the development needs of e-commerce and is also one of the specific manifestations of online payment business innovation. Its development should be encouraged while regulating.
2. Basic model of online payment
If you look at the participants of online payment, regardless of the transaction model of B2B or B2C, the participants of online payment business usually include both parties to the transaction. There should also be e-commerce platforms, third-party payment intermediaries, and commercial banks. From the perspective of e-commerce platforms, one type only provides online transaction information and provides a place for buyers and sellers; the other type of e-commerce platform is also a seller and directly provides goods and delivery services to buyers; third-party non-bank From the perspective of a payment intermediary, its main function is to connect buyers and sellers, e-commerce platforms and banks, serving as a bridge to ultimately realize fund transfers for online transactions. Such organizations can be divided into two major categories: one is that the e-commerce platform itself acts as a payment platform. This payment platform is only established for the e-commerce platform's own use. The payment platform is directly connected to the bank gateway; the other is that specializes in Online payment business organizations are not directly affiliated with any e-commerce company and can provide online payment for different e-commerce platforms. In this model, most of these payment intermediary service organizations open accounts for both parties to the transaction, and commercial banks also establish payment gateways through them. Online payment instructions pass through the bank gateway and finally enter their back-end processing system for final fund processing.
From a relatively long period of time in the future, the payment services engaged in by non-bank payment intermediaries in the entire online payment process will eventually have to go through bank gateways and be completed through banks. Of course, there are two special ones. Situations: One is the UnionPay method, which is similar to putting bank card acquiring business online; there is also a more special situation when the third-party payment platform opens accounts for both parties to the transaction, he can directly complete the transaction through the account. Transaction, this kind of transaction is not actually completed through the bank. These two methods do not need to be completed through the bank payment gateway.
From the perspective of online payment models, it can be roughly divided into four models: one is the bank gateway model, where the e-commerce platform is linked to the bank’s online banking system. In this model, buyers and sellers only involve e-commerce enterprises. With banks, online transactions are actually processed directly into the bank's online banking system, and the e-commerce platform only signs a contract with the bank; the second model is the third-party payment platform model. The e-commerce platform first links to the third-party payment platform, and the payment platform then communicates with the bank. Bank link; the third mode is UnionPay's mode; the fourth mode is the transaction mode within the payment platform. This transaction mode is actually closed, providing account services for buyers and sellers, and this can be completed through internal accounts. kind of transaction.
3. Main risks of the third-party payment service model
The risks of the above models should be different. The first bank gateway model is more for the electronic payment of commercial banks. It is more reasonable for the third UnionPay model to include the supervision of banking business or the supervision of electronic payments into the category of bank card acquiring. So when we standardize the business of online payment, we mainly consider the two models: the third-party platform model and the internal transaction of the platform. Because these two models have made a big breakthrough in some current institutional arrangements, these two models have many similarities. The internal trading model and the third-party platform model are actually the relationship between you and me, and I have you. , in order to establish such account services, it may be based on providing third-party payment services.
The risks of these two types of models mainly include several aspects: First, they are engaged in capital accumulation, and there is a large amount of capital precipitation. When the behavior of capital precipitation and capital accumulation occurs, there will naturally be Issues regarding financial security risks or payment risks. In these two modes, online payment institutions generally have a fund-absorbing behavior. The buyer pays the money to the enterprise, or an e-commerce platform, or a third-party platform, and then after a period of time, after the seller confirms, The platform then pays the money to the seller, and during the detention process, the money is deposited in the payment institution.
There is also another situation. After opening an account, as the transaction volume increases, some companies that provide payment services now sign contracts with customers, agreeing that, for example, liquidation will be done twice a week, or once a week. Or liquidate once a month. As this business volume gradually increases, the amount of funds deposited will be very large. This arrangement is to enhance confidence in online transactions and maintain fairness. It is indeed a very effective approach. However, the problem is that you ensure the confidence between the two parties to the transaction and provide credibility-enhanced services, but your own credit and security are compromised. Who guarantees this? When the transaction scale develops to a certain level, especially when the third-party payment service is not for one company, but for many companies, once something goes wrong, the impact will definitely be huge.
Second, many electronic payment service providers are involved in the issuance of electronic money, and there is currently no clear legal regulation for the issuance of electronic money. The issuance of electronic currency is a liability for the holder, so what should the redemption of the debt look like in the future, and who should bear the risk of redemption, etc. are all questions. When recharging accounts, buyers and sellers may deposit some money first. Although there is no clear regulation, for payment service providers, it is equivalent to issuing an electronic currency, and the form may be different in the future. , but basically all belong to the issuance of electronic currency. From the perspective of international electronic payment development, electronic money issued based on the Internet will definitely be a very important tool for online payment in the future. However, currently in China, there are indeed regulations on the nature, issuer, scope of use, etc. of electronic money. Still blank.
Third, this type of payment service involves payment and settlement accounts and the provision of payment and settlement services, breaking through some existing franchise restrictions. In accordance with some laws and regulations such as the Commercial Bank Law, the entire payment and settlement business and The payment and clearing business is actually a business exclusive to banks. After opening an account, how to characterize the funds deposited in the account and whether it is regarded as a deposit? Nowadays, many companies propose that they only provide agency services in order to avoid absorbing public deposits. This kind of agency service is regarded as agency collection and payment business under the Commercial Banking Law, and it is also the business of the bank. This type of business is actually still a chartered business, and non-bank institutions facing legal breakthroughs in this area of ??business.
E-commerce is developing very fast. It is difficult to predict what scale it will develop in one or two years and what scale electronic payment will reach. Once it reaches a certain scale, it will definitely have a certain impact on the entire payment and settlement system. PAYPAL, which has developed relatively well in the United States, has also aroused regulatory considerations at its current stage of development. After reaching a certain scale, the government will have to face it.
Fourth, online electronic payment may become a tool for illegal fund transfer and cash out, which will also bring certain financial risks. The current online payment single transaction amount or the overall transaction amount is not very large, and the phenomenon of illegal fund transfer and cash-out is not particularly obvious, but it has already appeared. For example, some online transactions are not actually real consumption, but a fake transaction. After paying with a bank card, the money enters the account of the payment platform, is transferred to the bank through the account, and cash is withdrawn from the bank. In fact, the purpose is to withdraw money from the bank. Get cash. For bank cards, credit cards limit a limit. If used within this limit, the amount of cash can be foreseen. This payment tool is provided to promote or meet payment needs or consumption needs, and is not intended to make people use cash in large quantities. There are controls on credit card withdrawals or restrictions on its use through transaction costs, but online transactions avoid these. Nowadays, many websites still charge no fees for buying and selling, and the cost is almost zero. Through this way, it is more convenient to cash out.
IV. Electronic Payment Guidelines (No. 1) and Third-Party Payment Services
The Electronic Payment Guidelines regulate electronic payment activities from the perspective of banks based on some new developments in online payment. In the entire online payment, banks still play a key role. Although third-party payment service organizations are indeed developing rapidly, it is commercial banks that really play the core role. Before the introduction of this guideline, commercial banks did not have good standards in terms of the entire electronic payment business process, technical risk prevention, business rules, information disclosure, and consumer rights protection. Electronic payment as a whole is still in the development stage, and relevant issues have not been thoroughly studied. Should we focus on promoting its development, or should we focus on regulating it? The guidelines reflect the idea of ??gradually forming norms during development, or using norms to promote development. Based on this consideration and combined with the characteristics of electronic payment business, a guideline approach is adopted, which is not mandatory.
According to internationally accepted practices, the entire payment system is divided into two categories: one is large-amount payment and the other is small-amount retail system. Online payment belongs to the category of small-amount retail system. Compared with large-amount payment, small-amount retail has more participating entities, involving banks, customers, merchants, system developers, network operators, third-party certification services and other institutions. There may be a contract between each subject, eventually forming a very large group of contracts, and the most fundamental or foundation and premise should be the relationship between the bank and the customer, which should be the first thing to be clarified and resolved.
Intermediary organizations often appear between banks and customers, such as companies specializing in online payment services, including some collection and payment agencies, which actually play the role of forwarders. This forwarder may be a non-bank institution or a bank. For example, many cities now offer over-the-counter services. You can use CCB coupons to deposit at ICBC, or use Agricultural Bank of China coupons to withdraw funds at ICBC. With the formation of counter-opening services, non-account banks play the role of forwarders. The payment and settlement business is defined in the draft of the Measures for the Administration of Payment and Settlement Organizations, which refers to organizations engaged in the exchange and calculation of payment instructions. Such an organization is not allowed to accept deposits, nor is it allowed to handle the final settlement of funds. Judging from many current electronic payment institutions, these two areas are involved. If it comes to how to characterize these two areas, whether it is to be characterized as a financial institution or as a payment and clearing organization, it falls into a contradiction. There is currently no unified solution to this problem abroad.
5. The next step of online payment legislation
The current electronic payment guidelines actually mainly regulate banks. The first guideline basically limits the scope of online payments engaged in by commercial banks. , there may be specific guidelines for non-bank institutions engaged in online payment business in the future. There are several main aspects to regulating non-bank online payment institutions: One is the security of transaction funds, which may require some clearer statements in the future.
If the transaction funds may not be misappropriated without authorization, special custody must be provided at a bank; a special account must be opened at a commercial bank for custody, and certain measures must be taken to ensure that the customer redeems electronic currency or converts the virtual funds in his account into legal funds. Also, is it necessary to pay a certain percentage of margin to maintain the transaction security of this part of the funds? The second aspect is the issue of protecting the interests of customers. Online payment is more technical than traditional payment methods. As a service provider, its advantages in all aspects are definitely much greater than that of customers. Service providers may use technology to If the advantage harms the interests of customers, some companies engaged in online payment services will impose more responsibilities or unfair terms on customers in the agreement, so there is also a need for a unified specification. The third aspect is to pay attention to combating money laundering crimes and cyber crimes. For example, online gambling funds will also be paid online, and supervision needs to be strengthened.
Engaging in online payments may involve the issuance of electronic currency based on the Internet or some software. With the development of e-commerce, when the scale and scope reach a certain level, it will have an impact on the existing monetary system. The RMB issued now is guaranteed by the credit of the country, and whether the electronic currency issued by third-party service agencies should be redeemed in the future is a question, how to control it, how to guarantee it, etc. are all problems, otherwise the public may be dissatisfied with this currency system. Create doubt.
There is also the issue of electronic bills. Regarding the issue of electronic bills, it is best to resolve its legal status through the legal level when amending the Bill Law. Looking at it now, the process of amending the Negotiable Instruments Law may be quite long. But now practical applications have begun to appear. For example, China Merchants Bank has begun to issue domestic electronic bills this year. The development of this electronic bill also deserves our active attention and research. Electronic bills will greatly promote the development of online payment, and online payment may reach a new level. The issuance, redemption, custody, and unified certification of electronic bills are very different from those regulated by the existing bill management or bill law.