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§ 3. Payment return on disputable operation at calculations by the electronic Money resources

Within the limits of the obligation on transfer of electronic money resources the important role is played by legal regulation of return of payment on disputable operation at clearing settlements electronic money resources.

For example, technical failure when electronic money resources are blocked or written off more than once from a bank card which is an electronic instrument of payment of the client can take place; swindle when the order about transfer of electronic money resources with use of a bank card of the client is initiated not by it independently, and the third party; absence of granting or inadequate granting by the trading-service organisation of the goods (work, service), paid by the client by means of transfer of electronic money resources with bank card use as electronic instrument of payment.

Payment return on disputable operation (further - «procedure chardzhbek») represents the procedure established by the operator of payment system and initiated by the emitter of a bank card on the basis of the reference to it of the holder of a bank card. So the emitter of a bank card, acting as the operator of electronic money resources, is the participant of payment system and, operating in its frameworks, joins its rules, including concerning procedure regulation chardzhbek.

In podp. 4 items 5 of item 15 of the Law № 161 are established, that the operator of payment system is obliged to provide possibility pre-judicial and (or) arbitration consideration of disputes with participants of payment system and operators of services of a payment infrastructure according to rules of payment system [250]. Thus, consideration of possibility of return of payment on disputable operation should be carried out in frameworks pretenzionnogo and (or) arbitration regulation of payment system. Concerning the last requirements of the Federal act from December, 29th, 2015 № 382-FZ «About arbitration (arbitration) in the Russian Federation» [251] and the Law of the Russian Federation from July, 7th, 1993 № 5338-1 «About the international commercial arbitration» [252] in case of presence of the agreement of the emitter of a bank card and ekvajera as subjects of procedure chardzhbek about transfer of the dispute which has arisen between them to arbitration to the Russian Federation or the international commercial arbitration are applied.

In the legislation of the Russian Federation the procedure maintenance chardzhbek is not regulated, that creates certain difficulties in practice. Concerning legal regulation of the given procedure in the Russian Federation national rules of the international payment systems are applied. The payment systems registered in territory of the Russian Federation, according to item 22 of item 3 of the Law № 161 are obliged to establish national rules of payment systems which have primary force in comparison with global rules of payment systems. For the purpose of the analysis of the legal relations arising at procedure chardzhbek, by us will be investigated including positions of Rules of payment system "МастерКард" in Russia from June, 21st, 2016 [253] (further - "Rules" MasterKard »») and Rules of payment system "Visa" on realisation of operations in territory

The Russian Federation from April, 1st, 2017 [254] (further - Visa "Rules" »») which by the legal nature it agree item 2 of item 20 of the Law № 161 are the contracts of adhesion concluded by operators of payment systems from them

257

Participants [255].

According to item 428 GK the Russian Federation joining treaty provisions are defined by the operator of payment system and can be accepted the participant of payment system only by joining to the contract as a whole, that is it cannot influence the maintenance of such contract. The given civil-law contract acts as an independent regulator of economy when by means of its use there is an adjustment of economic communications between subjects of the civil circulation. In any case the given contract has a smaller validity in comparison with laws of the Russian Federation and should them correspond.

In force podp. 1 item 5 of item 15 of the Law № 161 operator of payment system organises interaction between participants of payment system, operators of services of a payment infrastructure according to rules of payment system and the legislation of the Russian Federation. It is represented expedient to fix universal legal regulation of procedure of return of payment on disputable operation at federal act level, having regulated the rights and duties of each of participants of such procedure, its terms and stages [256].

Subjects of return of payment on disputable operation according to podp. 4 items 5 of item 15 of the Law № 161 act participants of payment system and operators of services of a payment infrastructure that sees proved owing to direct direct interaction of with each other specified subjects. It is important to underline, that the holder of a bank card, the trading-service organisation, the operator of payment system are not subjects of procedure chardzhbek. In item 23 of item 3 of the Law № 161 the participant of payment system is understood exclusively as the organisation which has joined rules of payment system with a view of rendering of services in transfer of money resources, including the operator of electronic money resources. In item 7 of item 3 of the Law № 161 it is underlined, that as the operator of services of a payment infrastructure the operational centre, the payment clearing centre and a financial settlements centre which concepts reveal in item 8, 9, 11 items 7 of the Law № 161 acts.

For comparison we will consider regulation of a legal status of subjects of procedure of return of payment on disputable operation within the limits of international payment systems "МастерКард" and "Visa". In international payment system "МастерКард" of the relation within the limits of procedure chardzhbek arise between direct and indirect participants of payment system [257], however the maintenance of the legal relations arising at subjects within the limits of procedure chardzhbek, it is not described. Thus essential difference of the direct participant of payment system from indirect according to item 8 of item 21 of the Law № 161 consists that last opens to itself the bank account at the direct participant - the operator on transfer of money resources.

Besides popular Rules "MasterKard" there is a special regulation of procedure chardzhbek within the limits of international payment system "МастерКард" - the Management on payment return on disputable operation in international payment system "МастерКард" from January, 16th, 2018 [258] (further - "Management" MasterKard »)» which has a smaller validity in comparison with Rules "MasterKard". In it among its subjects of process of return of payment on disputable operation are specified ekvajer and the emitter bank

Cards [259]. For comparison in international payment system "Visa" [260] subjects of procedure chardzhbek designate the holder of a bank card, the trading-service organisation, the emitter of a bank card, ekvajer. In section «Right of the emitter of a bank card» of the head "Resolution of disputes" of Operational rules under the permission of disputable situations in international payment system "Visa" from April, 15th, 2014 (further - Operational rules of "Visa"), absent in an easy approach as the special document of the operator of payment system "Visa", among subjects of process of return of payment on disputable operation are specified only ekvajer and the emitter of a bank card.

Let's notice, that inaccessibility of Operational rules of "Visa" to general data of consumers contradicts the Law. № 2300-1 regarding a guarantee of reception of the information on service in realisation of calculations in payment system, educations in the field of protection of the rights of consumers, responsibility of the operator of payment system for infringement of the rights of consumers.

Thus, legal relations on procedure chardzhbek within the limits of the specified international payment systems arise between the subjects who distinct from are specified in podp. 4 items 5 of item 15 of the Law № 161, having the big validity. In connection with a priority of a validity of the Law № 161 it is necessary to come to conclusion that the trading-service organisation and the holder of a bank card cannot act as subjects of legal relations on payment return on disputable operation; are incorrect and doktrinalnye positions of the scientists approving return for lack of the legal argument [261].

The organisation which has joined rules of payment system with a view of rendering of services in transfer of money resources, that is as the operator on transfer of money resources, can act as the emitter, and ekvajer.

As the emitter of a bank card according to the Position preamble about issue of payment cards of Bank of Russia the credit organisation which is giving out bank cards acts. Ekvajer as the credit organisation carries out calculations with the trading-service organisations on the operations made with use of payment cards and (or) delivery of cash money resources to holders of payment cards, not being clients of such credit organisation that proves to be true judiciary practice [262].

Besides, considering subjects of procedure chardzhbek, it is important to designate necessity of difference of subjects of exclusively procedure of return of payment on disputable operation as pre-judicial form of the resolution of dispute in the name of operators on transfer of money resources and operators of services of a payment infrastructure from subjects of proceeding concerning procedure chardzhbek in which take part including the trading-service organisation, and the holder of a bank card. For example, in quarrels at law about procedure chardzhbek the litigant is the trading-service organisation [263]. By analogy it agree item 34 and 35 Federal acts from October, 26th, 2002 № 127-FZ «About an inconsistency (bankruptcy)» [264] (further - «the Law № 127») the legislator discriminates the persons participating in business about bankruptcy, and the persons participating in arbitral procedure on business about bankruptcy which list considerably extends in comparison with the list of the persons participating in business about bankruptcy.

Further, analyzing legal relation signs on payment return on disputable operation, we will consider specific goals to which achievement procedure chardzhbek is applied. First, it is minimisation of swindle within the limits of the international payment system and as a whole unfair behaviour of its participants [265]. The last can be expressed in plunder belonging to the holder of a bank card of money resources, distortion of the fiscal accounting by the participant or the operator of services of payment system. In this connection control measures and the preventive measures directed on prevention of specified wrongful acts are necessary, as one of which procedure chardzhbek as a legal and technical measure simultaneously can act.

Secondly, aspiration to safety of payment of the goods (works, services) money resources by means of a bank card, and in this connection - and to trust to calculations within the limits of the international payment system [266]. The concept of safety in this case includes levelling not only risk of unfair behaviour of participants of payment system, but also technical, organizational failures at realisation of calculations. More global purpose is maintenance of financial safety of the Russian Federation as the states as a whole at the expense of financial calmness of its separate subjects.

Thirdly, occurrence of one more way of protection of the rights of the holder of a bank card concerning the money resources belonging to it, named, but not settled in legislation РФ269. That is the aspiration of the operator of payment system to define from the legal point of view the maintenance of procedure of return of payment on disputable operation is realised.

Fourthly, execution of legislative requirements of the Russian Federation [267]. It is a question, first of all, about podp. 4 items 5 of item 15 of the Law № 161 which establishes a duty of the operator of payment system to provide possibility of return of payment on disputable operation in frameworks both pre-judicial, and arbitration darraigning. In Position about uninterrupted operation of functioning of payment systems and the analysis of risks in the payment systems, approved the Bank of Russia from May, 31st, 2012 № 379-P [268], with a view of maintenance of stability and development of national payment system defines requirements to an order of maintenance of uninterrupted operation of functioning of payment systems, including an establishment of measures for maintenance of comprehensible level of risks of infringement of uninterrupted operation of functioning of payment system among which it is possible to allocate interaction of subjects of payment system within the limits of procedure chardzhbek.

Requirements of item 28 of the Law № 161 about a control system of risks in payment system as «a complex of actions and ways of decrease in probability of occurrence of adverse consequences for uninterrupted operation of functioning of payment system taking into account the size of a caused damage» which importance is marked in the literature [269] are executed also. Therefore, fifthly, by means of definition of controlling instrument of procedure chardzhbek uninterrupted operation and efficiency of functioning of payment system with the operator of payment system [270] is provided.

Sixthly, increase of appeal of payment system at the expense of the organisation and maintenance of possibility of gratuitous rendering of services in payment return on disputable operation [271]. Such possibility acts as an indicator, on the one hand, adaptability to manufacture and automation of payment system, and with another - its care about holders of bank cards, grantings of an appropriate degree of service by it concerning settlement of disputable situations. It essentially influences increase of business reputation of the operator of payment system.

Speaking about the maintenance of legal relations on payment return on disputable operation, we will designate, that Rules "MasterKard" even do not regulate in the general image the maintenance and signs of the legal relations arising within the limits of procedure chardzhbek, unlike the Management "MasterKard". We will note, realisation of return of payment on disputable operation is considered only as a protection frame of integrity of functioning of payment system "МастерКард" [272], that is the accent becomes on protection of interests of the operator of payment system "МастерКард". Thus at disagreement with the decision on payment return on the disputable operation, taken out at a stage of arbitration, any subject of such dispute can enquire revision of the decision of the operator of payment system by means of its direction by mail within forty five calendar days after date of removal of the corresponding decision on specified in Rules "MasterKard" to the address and under condition of payment of gathering [273]. In this case an essential lack of legal regulation of relations on payment return on disputable operation absence at the participant of procedure chardzhbek possibilities to refer to concrete norms of Rules "MasterKard" about the maintenance of this procedure and rules of its carrying out with a view of a substantiation of own position [274] sees neukazanie the bases for the appeal of such decision. We offer in Rules "MasterKard" ramochno to define regulation of the relations arising at return of payment on disputable operation with the subsequent sendings in them to the Management "MasterKard" for an explanation of concrete questions.

The maintenance of relations on payment return on disputable operation by the general image is described in Rules of "Visa" [275]. First of all, the duty of participants of payment system is declared to co-operate and offer mutual aid each other. It is represented, that such position is not additional regulation concerning procedure chardzhbek. It it is necessary to recognise as repetition fixed in item 3 of item 1 GK the Russian Federation of a principle of conscientiousness of participants of the civil circulation marked by vessels [276], which existence according to item 5 of item 1 GK the Russian Federation it is supposed more likely, other is not proved yet [277]. Explaining the specified principle, VS the Russian Federation specifies, that at an estimation of conscientiousness of actions of the party it should is necessary to take into consideration the behaviour expected from any participant the civil circulation which to consider the rights and legitimate interests of other party [278].

Let's designate, that concerning the order of a document transfer arising within the limits of relations on return of payment on disputable operation, within the limits of procedure chardzhbek the Resolution of disputes online »is underlined their transfer by means of special system«, however further in the document is not deciphered, that is understood as such system, and also possibility of joining to it [279] is not described. That is the obstacle for use as a way of protection of the rights and interests of procedure chardzhbek [280] is created. Other obstacle is compulsion of registration of all documents in English while a state language Russian admits the Russian Federation agrees item 1 of item 68 of the Constitution of the Russian Federation and item 1 of item 1 of the Federal act from June, 1st, 2005 № 53-FZ «About a state language of the Russian Federation» [281].

Further we will analyse the legal relations arising at return of payment on disputable operation, including within the limits of the international payment system "Visa" [282], developing of several stages [283].

The first stage. The holder of a bank card directs to the emitter the claim about disputable operation. Thus it is not specified, in what form such claim can be directed, and what obligatory positions should be specified in it. The emitter estimates validity of this claim and the decision on makes, whether to begin procedure chardzhbek. That is the first stage - acceptance by the emitter of the decision on the procedure beginning chardzhbek and its direct beginning. Similarly commencing a suit date about bankruptcy according to item 1 of item 5 of the Law № 127 is the moment of acceptance by court of the statement for a recognition of the debtor the bankrupt, instead of the moment of giving of such statement.

Thus before occurrence at the emitter of possibility to initiate payment return on disputable operation the holder of a bank card is obliged to take measures for the permission of corresponding dispute directly with the trading-service organisation if it is not forbidden by an applicable law [284]. Such possibility of darraigning prior to the beginning of procedure chardzhbek between the holder of a bank card and the trading-service organisation sees reasonable and should be estimated positively.

The second stage. The emitter directs ekvajeru the notice on carrying out of operation of returnable payment in electronic form. Compulsion of realisation of the notice of the emitter in the electronic form Is represented unjustified. Not clearly, why the emitter enquires at ekvajera not the description of the specified problem, and at once demands to perform operation of returnable payment.

The third stage. Ekvajer independently solves a question on carrying out of operation of returnable payment or involves the trading-service organisation for its decision. We believe, that in a case when ekvajer decides not to involve torgovoservisnuju the organisation, it independently estimates the claim of the holder of a bank card as proved and makes payment in its advantage, and already further in a recourse order addresses for collecting of the corresponding sum of money resources to the trading-service organisation.

The fourth stage. At attraction at the third stage ekvajerom torgovoservisnoj the organisations she or agrees with the requirement of the holder of a bank card about realisation of operation of returnable payment - carrying out of payment in favour of the holder of a bank card, or disagrees with it and represents on re-examination ekvajeru the claim of the holder of a bank card about operation of returnable payment.

The fifth stage. Ekvajer agrees with the protest of the trading-service organisation about refusal of realisation of payment in favour of the holder of a bank card and directs to the emitter the corresponding notice - objection about contest of payment operation by the holder of a bank card and absence of the bases for payment of the sum of disputable operation.

At the same time within the limits of the fifth stage in "Visa" Rules the situation when ekvajer disagrees with the protest of the trading-service organisation is not described and makes payment in favour of the holder of a bank card, and further in a recourse order addresses for collecting of the corresponding sum of money resources to the trading-service organisation.

The sixth stage "And". The emitter agrees with a position ekvajera and torgovoservisnoj the organisations about absence of the bases for payment to the holder of a bank card of the sum of disputable operation and notifies on it the holder of a bank card - returns to the holder of a bank card its requirement about return of the sum of operation on a bank card. Thus, procedure chardzhbek at the given stage comes to an end, now the holder of a bank card has the right to address for protection of the rights directly in court.

The sixth stage. The emitter disagrees with a position ekvajera and torgovoservisnoj the organisations about absence of the bases for payment to the holder of a bank card of the sum of disputable operation and starts procedure doarbitrazhnogo, but only then arbitration regulation. Thus we will notice, that the maintenance and differences doarbitrazhnogo regulations from arbitration are not defined by "Visa" Rules. Concerning arbitration regulation it is specified only, that as the arbitrator the operator of payment system who accepts final judgement about the one who bears responsibility for disputable operation will act. Also it is defined, that final judgement of the arbitrator can be appealed on lawful basises. However be not defined in what body it can it is appealed, and also where lawful basises for such appeal are defined. Thus as the subject of arbitration the Commission on the arbitration which functions consist in check of the information and documents on procedure chardzhbek, definition of the subject which bears responsibility on procedure chardzhbek is underlined. Interaction process between such Commission and the arbitrator does not differ clearness of settlement.

The sixth stage "In". The given stage in "Visa" Rules directly is not allocated, situation occurrence when irrespective of result of the fifth stage the emitter can return demanded by the holder of a bank card money resources however is possible.

268 In the same place. With. 62.

269 In the same place. With. 62.

Thus, possibility to choose as a way of consideration of dispute pre-judicial consideration of dispute within the limits of national rules of payment system (procedure chardzhbek) with the subsequent possibility of the resolution of dispute in court under the legislation of the Russian Federation is given to the holder of a bank card.

As it is specified above, today in national rules of payment systems "Visas" and "MasterKard" there are no special positions about contest by the holder of a bank card of payment operation in connection with an unaccordance to it of the goods (work, service). There is no access to practice of the resolution of disputes by the international payment systems on procedure chardzhbek by national rules of payment systems. Last lack sees especially critical in connection with a considerable quantity of disputes on return of payments on disputable operation, and also absence of the information as at participants of corresponding litigation for protection of the rights within the limits of such process, and at vessels of the Russian Federation by consideration of the specified disputes within the limits of the trial initiated by the holder of a bank card for the purpose of protection own интересов288.

Besides, within the limits of procedure chardzhbek at a stage doarbitrazhnogo regulations the right unilaterally to keep with ekvajera the sum of operation is given to the operator of payment system and to translate it in favour of the holder of a bank card. We will designate, that today in the legislation of the Russian Federation such right of the operator of payment system is absent, also we cannot find and doktrinalnye a substantiation of such right. Sees, that such right of the operator of payment system is caused by the purpose of maintenance of protection of consumers as weakness and their confidence of execution of transfers by means of money resources and electronic money resources.

It is represented, because in the Law № 161 there is no interdiction for granting of the specified right to the operator of payment system, operates

Principle of freedom of the contract it agree item 1 of item 1 GK the Russian Federation and a principle dozvolitelnosti legal regulation when everything is authorised, that directly it is not forbidden by the law. Under item 2 of item 1 GK the Russian Federation the operator of payment system can establish in the national rules own right unilaterally to keep with ekvajera the sum of disputable operation. In judiciary practice the right of the operator of payment system unilaterally to keep with ekvajera the sum of disputable operation and to translate it in favour of the holder of a bank card proves to be true by means of sending to Rules "MasterKard" [285] and to Rules of "Visa" [286] as a whole or particularly to chapter 9 Corrected "Visas" [287]. Sometimes it and at all affirms without any reference on reguljativnyj the document of payment system [288]. Causes criticism absence in judicial certificates of references to concrete position of rules of the international payment system by consideration of the legal relations arising within the limits of such payment system [289].

Summing up told about the maintenance of the legal relations arising at return of payment on disputable operation, the holder of a bank card only initiates the beginning of procedure of return of payment on disputable operation at the emitter of a bank card, and the trading-service organisation represents objections concerning such procedure ekvajeru, thus neither the holder of a bank card, nor the trading-service enterprise do not act as subjects of legal relations on payment return on disputable операции294.

At this the given obligations civil matter is kondiktsionnym. According to item 1102 GK the Russian Federation the trading-service organisation which without statutory, other legal act or the transaction has got property at the expense of the holder of a bank card, is obliged through the emitter of a bank card to return to the holder of a bank card superficially got property in the form of electronic money resources. In this case the trading-service organisation in the interests without a legal ground gets the electronic money resources which have been written off from a bank card of its holder. That is in this case arises kondiktsionnoe the obligation when after the enrichment fact there is a guarding obligation.

Thus, according to item 1102 GK the Russian Federations are present all conditions of unjust enrichment:

- Presence of enrichment in the form of increase in value of property of the purchaser (the trading-service organisation) in the form of acquisition, that is joining to property of the trading-service organisation as purchaser of new value (electronic money resources, money resources);

- Enrichment of the trading-service organisation as purchaser has occurred at the expense of other person - at the expense of the holder of a bank card ("plus" on the party of the trading-service organisation means "minus" on the party of the holder of a bank card);

- Absence of a legal ground of enrichment of the trading-service organisation to the detriment of the holder of the bank card, not based on the law, other legal act or the transaction.

As the basis given kondiktsionnogo obligations it is necessary to designate wrongful act of the trading-service organisation when without a legal ground electronic money resources are translated in organisation торговосервисной address in connection with technical failure, swindle, an unaccordance the trading-service organisation of the paid goods (work, service).

Among elements such kondiktsionnogo obligations should be noted, in - the first, subjects - the victim in the name of the client (creditor) and the purchaser in the name of trading-service the organisations (debtor). Secondly, as a subject superficially got property in the form of patrimonial things - electronic money resources acts. According to item 2 of item 1104 GK the Russian Federation the purchaser answers before sustained «for everyones including for everyones casual, shortage or deterioration superficially got or sberezhennogo property, proisshedshie after he has learnt or should learn about superficiality of enrichment. Till this moment he answers only for intention and gross negligence».

The maintenance present kondiktsionnogo obligations is expressed in a duty of the debtor and korrespondirujushchej to it the incorporeal right of the creditor. A duty of the purchaser - to return superficially got property it agree item 1 of item 1104 GK the Russian Federation. Thus according to item 1107 - 1108 GK the Russian Federation the purchaser since the moment, when he has learnt (or should learn) about superficiality of the enrichment, it should return all received incomes and acquires the right to indemnification of expenses.

Thus, legal relation on process of return of payment on disputable operation at realisation of transfers of electronic money resources represents kondiktsionnoe obligations civil matter between concrete subjects in the name of the emitter of a bank card and ekvajera which maintenance is expressed in a duty of the emitter of a bank card under the statement of the holder of a bank card through ekvajera to obtain on demand return before the carried out payment at the trading-service organisation.

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A source: KHRUSTALYOVA ANNA VALEREVNA. ELECTRONIC MONEY RESOURCES AS OBJECT of CIVIL MATTER. The dissertation On competition of a scientific degree of the master of laws. St.-Petersburg - 2018. 2018

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  14. KHRUSTALYOV ANNA VALEREVNA. ELECTRONIC MONEY RESOURCES AS OBJECT of CIVIL MATTER. The dissertation On competition of a scientific degree of the master of laws. St.-Petersburg - 2018, 2018
  15. Narikov Gennady Sergeevich. the NATION-WIDE PAYMENT SYSTEM And DEVELOPMENT of ELECTRONIC CARRIERS of MONEY. The dissertation on competition of a scientific degree of a Cand.Econ.Sci. Khabarovsk, 2001 2001
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