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Electronic Money and Relevant Legal and Regulatory Issues(电子货币及相关法律、监管问题)(2000)

作者:杨春宝律师 来自:法律桥 时间:2004-12-19 20:40:20 点击:


II. Electronic Money

1. What is money?

Money is a medium that people are willing to accept for the goods, securities, and services that they sell. Money serves three purposes.10 First, as just mentioned, it serves as a medium of exchange. Second, as a standard of value, it serves as a measure for the value of a good or service and thus provides a standard for making comparisons between different goods and services. Finally, it functions as a store of value, thus it can be saved and used in the future.

In order to realize its three functions, money possesses certain characteristics which allow it to enable transactions. First, it must be durable to function as a store of value. In other words, when money is not spent, it is retrievable. However, if it is destroyed, stolen, or otherwise lost, it is not replaceable. Second, it must be difficult for individuals to create or counterfeit money. Public trust in money's legitimacy is an essential element of its successful use as a medium of exchange. Third, it must be widely accepted. The larger the community of users who trust and accept money, the more that its value as a medium of exchange is increased. Finally, when it is exchanged, there is anonymity.11

2. What is electronic money?

E-banking as well as e-money are rather generic terms and we need to specify what we are talking about. It is well accepted that e-banking can be separated into two streams: one is e-money products, mainly in the form of stored value products, the other is electronic delivery channel products or access products. The latter are products that allow consumers to use electronic means of communication to access conventional payment services, for example, use of a standard personal computer and a computer network such as the Internet to make a credit card payment or to transmit instructions to make funds transfers between bank accounts. The significant novel feature of these access schemes is the communication method and so they do not raise the same concerns as e-money schemes and are not considered further in this article.

As e-money is still at the early stage of development, there is still no unified definition of e-money. Different person even different bodies have described and categorized e-money products in different ways. The European Commission defined electronic money in its Draft Directive as:12

a. Stored electronically on an electronic device such as a chip card or a computer memory;

b. Accepted as means of payment by undertakings other than the issuing institution;

c. Generated in order to be put at the disposal of users to serve as an electronic surrogate for coins and banknotes; and

d. Generated for the purpose of effecting electronic transfers of limited value payments.

The Consumer Advisory Board of the Federal Reserve Board of the USA described that e-money is money that moves electronically. It can be carried on the persons in the form of a smart card or stored-value cards or electronic wallets. It can be used at the point of sale or it can be used person-to-person directly without the intervention of any outside entity. It can be moved around or spent through telephone lines to banks or other provides or issuers. It can also be moved around or spent through links with interactive cable television and personal computers.13

From the above definition and description, we can conclude that e-money is a "stored-value" or "prepaid" payment mechanism in which a record of the funds or "value" available to a consumer is stored on an electronic device in the consumer's possession. The electronic value is purchased by the consumer and is reduced whenever it is transferred directly to other devices, or the consumer uses the device to make purchases via point of sale terminals or over open computer networks such as the Internet. In contrast to the many existing single-purpose prepaid card schemes (such as prepaid telephone cards), e-money products are intended to be used as a general, multipurpose means of payment.

It is clear that e-money includes both prepaid cards (sometimes called “smart cards? or “electronic purses? and prepaid software products that use computer networks such as the Internet (sometimes referred to as “digital cash?. The most common e-money products are card-based products, industry leaders in this sector being Mondex and VISA Cash. While the Dutch company Digicash first pioneered the software approach. There have been dozens of other e-money products and systems introduced to the public, such as CyberCash, Millicent, Proton, PayPal, eMoneyMail, BillPoint, Payme.com, PayTrust and Propay.14 Although each of them has some different features, they can be included in the above-said two general categories. While each of these products are efficient and innovative, however, so far, most have attracted customers only in limited consumer and business applications. So, I would like to describe below briefly how the major e-money products work.

Mondex was initially invented in 1990 and based in London, it is currently under development in more than 75 countries around the world. It contains a microprocessor chip that could hold and transfer electronic value. By utilising bearer certificates, funds deposited are remotely stored on the users actual card, which is not linked to any central account. In addition, the electronic wallet that accompanied the card allows the value on the card to be transferred from person-to-person indefinitely without any central verification or clearing requirement, making it the closest in operation to real cash. It also has the additional ability to store the recent payment history.15

The Visa Cash is similar to Mondex. However Visa Cash payments are routed through a central facility and cannot be transferred from card to card with the same degree of ease. One major point in its favour is its appeal to banks as it allows them to earn float income, therefore Visa Cash is more attractive from a purely commercial point of view.16

The Digicash Company was based in the Netherlands after being established in 1990 by David Chaum.17 The e-money product of the company was called “eCash? To use eCash, an account should be established at a DigiCash-licensed bank with real money. Once established, the customer can withdraw eCash that is stored on the user computer's hard drive. Using proprietary software, eCash can be spent with an Internet merchant or with anyone else whose computer is set up to deal in eCash. However all such transactions must be made through an intermediary bank. One of the cornerstones of the Digicash system is its insistence on the maintenance of privacy. The system uses “blind signatures?as the way for the issuing bank to certify each token it issues. The actual process requires the customer, not the bank, to generate the eCash token. The customer creates blank tokens and forwards them (hidden in a digital envelope) to the bank for certification. The bank stamps its signature on each token, debits the customers account and sends the token back over the Internet.18 So the digital tokens can be registered and verified by the issuer without revealing to whom it was originally issued. In effect, these digital cash transactions are capable of being as anonymous as cash. Because the system is software based, it is therefore relatively easy to duplicate certified eCash tokens. Therefore to guard against this, any eCash presented for payment is crosschecked with the central registrar to ensure it has not already been spent. It seems it is impractical for most merchants and customers and this has limited its application in the market.

With regard to their potential use and growth, card-based products are being designed to facilitate small-value payments in face-to-face retail transactions and would therefore constitute a close substitute for banknotes and coin. While software-based schemes would be used to make remote payments over computer networks, primarily the Internet. They are likely to substitute for both cash and, to some extent, other cashless payment instruments such as cheques and funds transfers.

3. The key features of e-money

In general, e-money should be characterized as a substitute for currency. As mentioned above, it is a replacement for currency as well as other payment mechanisms such as checks, credit cards, traveler's checks, and debit cards. The key features of e-money are as follows:

Firstly, e-money value is stored electronically on an electronic device, although different products differ in their technical implementation. To store the prepaid value, card-based schemes involve a specialised and portable computer hardware device, typically a microprocessor chip embedded in a plastic card, while software-based schemes use specialised software installed on a standard personal computer.

Secondly, e-money value is transferred electronically in different ways. Some e-money schemes allow transfers of electronic balances directly from one consumer to another without any involvement of a third party such as the issuer of the electronic value. More usually, the only payments allowed are those from consumers to merchants, and the merchants in turn have to redeem the value recorded.

Thirdly, related to transferability is the extent to which transactions are recorded. Most schemes register some details of transactions between consumers and merchants in a central database, which could then be monitored. In cases where direct consumer-to-consumer transactions are allowed, these can only be recorded on consumers' own storage devices and can be monitored centrally only when the consumer contacts the e-money scheme operator.

Fourthly, the number of participants and parties functionally involved in e-money transactions tends to be greater than in conventional transactions. Typically, four types of service provider will be involved in the operation of an e-money scheme: the issuers of the e-money value, the network operators, the vendors of specialised hardware and software and the clearers of e-money transactions. The issuers are the most important providers, while the network operators and vendors only supply technical services, and clearing institutions are typically banks or specialised bank-owned companies that provide a service that is no different from that provided for other cashless payment instruments.

Finally, technical hitches and human errors may hinder or prevent the execution of a transaction to a degree not commonly experienced in relation to paper based transactions.

4. The impacts of e-money on banks

Electronic payment media are likely to figure importantly in the development of electronic commerce, and retail electronic banking services and products, including e-money, could provide significant new opportunities for banks. E-banking and e-money may allow banks to expand their markets for traditional deposit-taking and credit extension activities, and to offer new products and services or strengthen their competitive position in offering existing payment services. In addition, e-banking and e-money could reduce operating costs for banks.

More broadly, the continued development of e-banking and e-money may contribute to improving the efficiency of the banking and payment system and to reducing the cost of retail transactions nationally and internationally. This could potentially result in gains in productivity and economic welfare. It is estimated that an ATM transaction costs about $0.27, a teller generated transaction in a financial institution costs about $1.07,19 and the average cost of swiping a credit card ranges from $0.08 to $0.15.20 While the cost of dipping a smart card, which requires no closed proprietary or open network to transmit its electrons from chip to chip, is less than $0.01, it is widely believed that software-based transactions will cost even less. Moreover, banks pay for their ATMs, and consumers pay for their PCs.21

In addition, e-banks are easy to set up so lots of new entrants will arrive. ‘Old-world? systems, cultures and structures will not encumber these new entrants. Instead, they will be adaptable and responsive. Therefore, e-banking gives consumers much more choice. Consumers and merchants may be able to increase the efficiency and enjoy greater convenience. E-money may also increase access to the financial system for consumers who have previously found access limited.

However, the development of e-banking and e-money is also a new challenge to traditional banks. As mentioned above, e-money transactions are much cheaper than ever. This could turn yesterday’s competitive advantage (a large branch network) into a comparative disadvantage, allowing e-banks to undercut bricks-and-mortar banks. On the other hand, e-banking will lead to an erosion of the ‘endowment effect?currently enjoyed by the major traditional banks. Deposits will go elsewhere with the consequence that these banks will have to fight to regain and retain their customer base. This will increase their cost of funds, possibly making their business less viable. Lost revenue may even result in these banks taking more risks to breach the gap. Portal providers are likely to attract the most significant share of banking profits.

Furthermore, the e-money products will be provided by monolines, experts in their field. Traditional banks may simply be left with payment and settlement business, even this could be cast into doubt. Traditional banks will find it difficult to evolve. Not only will they be unable to make acquisitions for cash as opposed to being able to offer shares, they will be unable to obtain additional capital from the stock market. This is in contrast to the situation for Internet firms for whom it seems relatively easy to attract investment.
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【本文作者:杨春宝律师,来自:法律桥,引用及转载应注明作者和出处。如需聘请律师,请立即致电杨春宝高级律师:1390 182 6830



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