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电子货币及相关法律、监管问题

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

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IV. Legal issues on regulating e-money

Traditionally, central banks have four duties: they manage monetary policy, they supervise the payment system, they promulgate regulations, and, in many countries, they supervise the banking system as a whole. Each of these roles is going to be affected by the development of e-money to some extent. Main issues are related to the operation of monetary policy, seigniorage, their oversight function for payment systems and the possible financial risks borne by issuers of e-money. There are also a range of other policy issues such as consumer protection, competition, access and standards. Some of these issues are overlapped, so I would like to discuss some key concern as follows.

1. Do e-money products affect the monetary policy?

The answer is obvious. The introduction of e-money could potentially have an effect on the demand for monetary aggregates and on the formulation of monetary policy. The effects of e-money on the implementation of monetary policy will depend upon whether its primary impact is on the demand for bank reserves or on the central bank’s capacity to supply these reserves.

The most important development in connection with e-money is a reduction in the demand for cash. As cash circulation is a lever by which central banks can control the money and credit expansion of private banks and hence provide some more monetary stability, it is conceivable that a very extensive substitution could complicate the operating procedures used by central banks to set money market interest rates. However, since e-money is expected to substitute mostly for cash rather than deposits, operating techniques need not to be adjusted significantly. On the other hand, with e-money transaction, the whole process including clearing can be carried out in a matter of seconds. Such an acceleration in the circulation rate amounts to an increase in the quantity of money, and increased money circulation could lead to increased inflation.

The effect on supply would result from the impact of e-money on the size of central bank balance sheets, which will depend on the extent that e-money substitutes for cash. Since cash is a large or the largest component of central bank liabilities in many countries, a very extensive spread of e-money could shrink central bank balance sheets significantly. Since banknotes in circulation represent non-interest-bearing central bank liabilities, a substitution of e-money for cash would lead to a corresponding decline in central bank asset holdings and the interest earned on these assets that constitutes central bank seigniorage revenue. And these revenues are large relative to central bank operating costs, as e-money developing, the revenues could be too small to cover the cost of central bank operations.

In principle, central banks have several policy options to reduce the shrinkage of their balance sheets. Firstly, central banks could consider issuing e-money themselves, or issuing e-money without actually operating e-money schemes themselves thus to encourage competition and incentives to innovate. Secondly, central banks could expand the coverage of reserve requirements to cover e-money or other liabilities, and governments could grant the central banks the exclusive right to own and operate the electronic payments network. Thirdly, central banks could issue new liabilities, such as central bank bills, or pay interest on reserve balances in order to induce private banks to hold larger deposits at the central bank. Government entities might also be induced to increase their deposits at the central bank. Finally, as an alternative to these measures, central banks might rely on off-balance-sheet transactions and, in the case of large lender of last resort operations, use private banks as their agents. Furthermore, governments could levy transactions taxes on the use of e-money by charging a tax at the time of issue.


2. Who may issue and distribute e-money products?

With respect to the general regulatory approaches, an important consideration is whether e-money fits within traditional product categories and hence is covered by existing product regulations. For example, if it is decided that e-money balances are a form of deposit,22 any existing regulations concerning deposits are likely to apply. However, even in this case there may be a need to review the regulatory approach, for it does not necessarily follow that the existing regulations will be the most appropriate for e-money schemes.

Who can be allowed (or will be allowed) to issue e-money? There are several possible types of issuer: banks (credit or deposit-taking institutions, defined differently in different countries), other regulated non-bank financial institutions and non-financial institutions. The latter two categories of institution are typically subject to less regulatory oversight than banks. Different countries adopt different opinions on this point.

In the European Union, the European Commission’s stated aim was on the one hand to ensure the stability and soundness of issuers of e-money, while on the other hand ensuring that the failure of one individual issuer does not materially impact on the development of such a means of payment. The proposed framework was thus tailored to the specific nature of e-money services, and to some extent designed to encourage new players to enter the market. The 1994 Report of the European Monetary Institution (EMI) on EU Payment Systems23 first concerned pre-paid cards such as Mondex and Visa Cash, it concluded that e-money issuance should be restricted only to credit institutions as defined by the First and Second Banking Directives with the resultant effect of precluding non-banks. Its conclusions were almost mirrored by the further opinion of the EMI Council on the issuance of e-money published in its 1997 annual report,24 which also concerned software-based e-money systems. In the 1997 report, it stated that: “The funds collected in exchange for electronic money are redeemable by nature, and [such] issuers should be subject to minimum requirements regardless of their status as credit institutions.?/FONT>25

The European Commission published the Proposed Electronic Money Directive in 1998. One of the most important parts of the proposal concerns the plan to amend the definition of credit institution in the First Banking Directive to allow non-banking institutions to issue e-money. Article 4 of the proposed directive sets down limits as to what investments e-money issuers can make with the funds they hold in the “float? all of which are all highly liquid ultra low risk rated. However, the European Council Economic and Social Committee obviously took the view that it was more important to protect consumers and maintain prudential standards, than to open the market place to the largest number of participants possible.

In the United States, it appears that under current state and federal laws, entities other than depository institutions may issue e-money. On May 2, 1996, the Board of Governors of the Federal Reserve published proposed amendments to modify Regulation E’s requirements on stored value cards.26 However, Congress, in an amendment to the 1997 appropriations bill, directed the Federal Reserve to hold off regulating stored value cards under Regulation E for at least nine months, while it studies the impact regulation could have on development.27 And on August 2, 1996, the FDIC issued a legal opinion indicating that most stored value cards do not qualify for deposit insurance.28

Hong Kong is one of the jurisdictions around the world that has chosen to put in place a specific legal framework to deal with the issuance of e-money. This is contained in the Banking Ordinance. The thinking behind the legislation was that the issuance of multi-purpose stored value cards such as Mondex and Visa Cash is an activity akin to the taking of deposits or the issuance of bank notes, and should be confined to licensed banks. On the other hand, non-banks are allowed to issue limited purpose cards which would have a distinct core use, such as payment for transport services, but could also be used for a restricted range of ancillary or incidental purposes. There is provision for the issuers of such cards to be licensed as a special type of deposit-taking company under the Banking Ordinance. If the range of non-core uses is very limited, it can be exempted altogether.

Most of other governments do not generally allow anyone but governmental entities to create money. While private entities are able to create and distribute substitute money products such as traveller’s checks, generally, they are viewed as special purpose instruments and are not used in the same frequency, volume or scale as traditional money. As to the issuance of e-money, it seems that no definitive decision has been reached.

It seems it is a controversial issue. It is difficult and premature to conclude that which model is more appreciate to the development of e-money. In any country, if issuance of e-money is limited to banks, the regulatory framework already in place can be extended to cover the new products but competition and innovation might be more limited. In contrast, if a greater variety of institutions can be issuers, a greater degree of competition could yield commensurate benefits but a number of regulatory issues may be left unresolved. For regulators one key danger is a failure to understand changing risk profiles and vulnerability of individual firms and also changes to market structures and interactions. Regulators must identify, assess, control and monitor the risks associated with e-money. A key issue for central banks is the degree of risk that might be acceptable. This would partly depend on the risk that it would be appropriate for an individual institution to bear. Another consideration would be whether the failure of one participant was likely to threaten the viability of the whole scheme or whether the failure of one scheme could threaten the viability of other schemes or the reputation of electronic payment systems more generally. The speed of the Internet considerably cuts the optimal response times for both banks and regulators to any incident.

Therefore, it is not very important whether issuance of e-money should be limited to banks, it is important that issuance of e-money should be regulated, and issuers must have a comprehensive risk management process which is subject to oversight by central bank. It is essential to regulate not just who can issue e-money but also the types of e-money product that can be offered. For example, restrictions might be placed on the maximum value that consumers and retailers are allowed to hold or on user-to-user transactions, or scheme operators might be required to monitor transactions.

3. Clearing and settlement as well as liquidity and stability issues

Virtually all e-money schemes under development will need inter-institution clearing and settlement arrangements. Many e-money schemes plan to use existing interbank arrangements. Those clearing agents usually require each issuer to maintain an adequate balance between e-money outstanding and the chosen reserve backing. However, if there is a sudden increase in demand for redemption of e-money, it may be a serious problem for the issuer. If public perceives liquidity problems there may be a more widespread withdrawal of deposits or redemption of e-money. Failure to meet redemption demands in a timely manner could also lead to reputation damage. Therefore, regulations and monitoring system on clearing and redemption may be necessary for smooth operation as they provide a safeguard against over-issuance. Other than reserve requirement, issuers should also be required to invest funds in liquid assets and conduct regular and comprehensive audits. Moreover, operators and overseers of interbank clearing and settlement systems need to ensure that such systems are sufficiently robust in terms of institutional and operational arrangements, risk management and settlement procedures. Because e-money allows a transaction to clear almost instantaneously, diligence is required to account for electronic cash and track redemption patterns.

In addition, some schemes might offer e-money in more than one currency, which might, for example, make it more difficult for central banks to measure accurately the stock of e-money denominated in the home currency. Many e-money schemes are being developed on the basis of technology or procedures developed in foreign countries by, for example, large international payment card companies. A concern may be how the public authorities can obtain detailed and precise information about the products or schemes being promoted in their country by foreign vendors, and how they might be able to influence individual schemes in the light of their particular domestic concerns.


4. Fighting improper use of e-money

There are some improper uses of cash which likewise can be replicated by e-money. These include illicit uses, such as transactions in black markets and illegal transactions. Thus, time, attention, and resources may need to be committed to the control and prevention of such serious threats as deception, fraud, embezzlement, and money laundering. Moreover, many of the features relevant to the security of e-money may increase its attractiveness for money laundering and other criminal activities. Its use for such purposes would depend upon the extent to which e-money balances can be transferred without interaction with the system operator, the maximum amount that can be held on an e-money device and its record-keeping capacity, and the ease with which e-money can be moved across borders. Some argue that the interest and activities of governments in fighting money laundering is directly contrary to the interest and activities of those seeking to develop anonymous digital commerce and e-money.29 The UN, G7, EU and a host of supra-national bodies have called for co-ordinated action on stamping out dirty money, and there are over 100 States that either have or are considering the criminalisation of money laundering. These include the tax havens of Europe, the Carribbean and the South Pacific.30 It is required that financial institutions should "know your customer" (which includes an explicit prohibition of anonymous accounts) and to report "suspicious" transactions.31 The European Council Economic and Social Committee felt that card-based e-money and software-based e-money should be regulated separately. This was justified principally by the greater implications for money laundering and fraud presented by the software-based e-money that can be used to transfer any amount, compared to the small transactions carried out using prepaid cards. The Committee proposed that much more stringent regulations be applied to software money issuers.32

Therefore, governments should review the basic legal concepts that define banking and their methods for preventing fraud and unlicensed banking activity. Moreover, because electronic information that is transacted on the Internet shows little respect for national borders, these issues likely will require the coordinated attention of authorities in various countries.


5. International co-operation

As mentioned above, e-money products are based on technology that by its nature is designed to extend the geographic reach of banks and customers. When e-money payments are made across borders (particularly with software-based schemes that operate over computer networks), it may be difficult to establish to what extent e-money schemes fall within the scope of particular jurisdictions. Supervision in today’s global environment can only ever be effective if it has an international dimension. Of course, regulators have already had to deal with the regulatory problems of international banking for a long time. They had set up mechanisms for cross-border supervision; agreements over home/host responsibilities, bilateral agreement for information sharing and general standards by which they expect all banks, including those offshore territories, to abide. However, it is dangerous to expect that this general mechanism for international supervision will be robust enough to work just as well in the e-banking as the physical environment. They should do more.

The Basel Committee E-Banking Group believes that Basel should provide the international supervisory community with a broad set of advisory guidance with respect to e-banking, thereby providing a basis for domestic regulation and supporting consumer and industry education.33 Globally, such guidance would assist international co-operation and act as a foundation for a coherent approach to supervising e-banking and e-money. It could facilitate international e-banking and e-money by creating consumer confidence in sound banks based in different, possibly less satisfactory, regimes and might dissuade host supervisors from imposing additional, potentially draconian, regulation on such banks. The Group identified authorisation, prudential standards, transparency, privacy, money laundering, and cross border supervision as issues on which they felt that there is need for further work, both at the analytical and policy level before any such guidance could be developed.34
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