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§ 2. The legal nature of electronic money resources

Electronic money resources it agree item 18 of item 3 of the Law № 161 is «money resources which are preliminary given by one person (the person who has given money resources) to other person, considering the information on the size of the given money resources without opening of the bank account (party liable), for execution of liabilities of the person who have given money resources, before the third parties and in which relation the person who has given money resources, has the right to transfer orders exclusively with use of electronic instruments of payment». Taking into account this legal definition we will analyse the signs immanently inherent in electronic money resources, and we will prove, that electronic money resources act as independent object of the civil rights in the form of the liability laws essentially differing from such objects of the civil rights as cash and money resources, consolidated by the general concept "money".

First, electronic money resources are money resources.

We consider electronic money resources as liability laws of the requirement of the person who has given money (the client or the payer - terms are used in the Law № 161 as synonymous, defining the same subject), concerning the operator of electronic money resources [48] - according to item 4 of item 7 of the Law № 161 «the operator of electronic money resources considers money resources of the client by formation of the record reflecting the size of obligations of the operator of electronic money resources before the client in the sum of given money resources». The given position is divided in E.N.Abramovoj's [49] literature, M.V.Kolodkinoj [50], V.S.Loshchilinym [51], M.A.Korostelev [52], M.V.Shevchyuk [53].

Let's designate, that there are other opinions concerning the legal nature of electronic money resources which, it is represented, it is necessary to perceive critically. For example, V.J.Ivanov under electronic money resources in narrow sense considers «the information in the electronic form about the sum of money resources preliminary given to the emitter» [54]. E.Solomon also considered electronic money resources as the information, in quality of a lack of a turn of electronic money resources he noticed, that their transfer by means of a network the Internet is accompanied by an information transfer about the goods, works or services, that quite often leads to complexities of division of the specified streams of the information on transfer of electronic money resources and other information [55]. B.Cohen considers electronic money resources as the information existing in two basic forms, - plastic cards and money resources in a network the Internet [56].

According to item 2 of the Federal act from July, 27th, 2006 № 149-FZ «About the information, information technologies and about information protection» the information is «data (the messages given) irrespective of the form of their representation» [57] (further - «the Law № 149»). Such data freely extend, and to them unlimited access if in their relation the trade secret mode has not been entered is given, they do not act as result of intellectual activity, personal data etc. In particular, the information on the rests of electronic money resources concerns bank secret agrees item 26 of the Federal act from December, 2nd, 1990 № 395-1-ФЗ «About banks and bank activity» [58] (further - «the Law ³2 395-1») in which it is established, that the credit organisation is obliged to store secret about data on the rests of electronic money resources of clients of the credit organisations and data on transfers of electronic money resources by the credit organisations under the order of their clients.

Thus, bank secret of the client of the operator of electronic money resources data on the rests of electronic money resources form, data on transfers of electronic money resources under the order of clients, for example, data on payment operations of replenishment of the rest of electronic money resources of the client irrespective of ways of replenishment. Thus we will notice, that for lack of the order of the client concerning transfer of electronic money resources of data on payment operation are not bank secret, for example, if payment operation is made on request of authority, service of bailiffs.

The given V.J.Ivanovym's other lack of definition of the legal nature of electronic money resources of narrow sense consists that the operator of electronic money resources is not the emitter of money resources. According to item 18 of item 3 of the Law № 161 operator of electronic money resources does not emit electronic money resources - at transfer to it of money resources clients it acts only as the addressee of such transfers which it is obliged to consider in special way, and dispose with which clients can exclusively by means of use of electronic instruments of payment.

In our opinion, also V.J.Ivanovym's definition of electronic money resources in a broad sense is erroneous as «a financial product - services which can be given to (be emitted) only by the credit organisation» [59]. Electronic money resources cannot act as service as activity of the credit organisation. The scientist unreasonably mixes concepts of the maintenance of the obligation, object of the obligation and a subject of the obligation [60].

Secondly, electronic money resources are the money resources preliminary given by the payer to the operator of electronic money resources.

In connection with the specified sign of electronic money resources it agree item 5 of item 7 of the Law № 161 operator of electronic money resources have not the right to give to the client money resources for increase in the rest of electronic money resources of the last. Under item 18 of item 3 of the Law № 161 for occurrence of electronic money resources money resources should be preliminary given the operator of electronic money resources the client.

Besides, in item 6 of item 7 of the Law № 161 the interdiction for charge by the operator of electronic money resources of percent for the rest of electronic money resources of the client that is essential difference of electronic money resources from money resources is established.

As the purpose of an establishment of the specified interdictions of V.S.Loshchilin considers necessity of support of financial stability of operators of electronic money resources [61]. In our opinion, introduction of such interdictions is directed, first of all, on maintenance of conformity of each unit of electronic money resources to unit of cash for support of effective convertibility of the Russian currency, the control over calculations by electronic money resources, stability of bank system and economy of the Russian Federation [62].

Thirdly, electronic money resources are the money resources considered by the operator of electronic money resources without opening of the bank account to the payer.

According to item 4 of item 7 of the Law № 161 operator of electronic money resources considers money resources of the client «by formation of the record reflecting the size of obligations of the operator of electronic money resources before the client in the sum of given money resources» - the account of electronic money resources is led by the operator on transfer of electronic money resources into «the virtual account» client, korrespondirujushchem to an electronic instrument of payment of the client, opened at the operator of electronic money resources of whom the client cannot dispose. M.A.Korostelev [63], S.V.Ovsejko [64] also notice, that unlike money resources electronic money resources are not considered on bank accounts.

Fourthly, electronic money resources are the money resources given for the purpose of execution of liabilities of the payer before the third parties.

As essential difference of electronic money resources from money resources property of precipitancy of transfers of electronic money resources acts, on what pay attention of V.S.Loshchilin [65] and V.J.Ivanov [66].

According to item 5 of item 5 of the Law № 161 transfer of money resources is estimated from the date of write-off of money resources from the bank account of the payer or from the date of granting by the payer of cash money resources (with a view of transfer of money resources without bank account opening) and constitutes term no more than three working days.

According to item 10 and item 11 of item 7 of the Law № 161 transfer of electronic money resources is carried out promptly as follows: «by

Simultaneous acceptance by the operator of electronic money resources of the order of the client, reduction of the rest of electronic money resources of the payer by it and increases it of the rest of electronic money resources of the addressee for the transfer sum »[67];« with use of the prepaid card in time no more than three working days after acceptance by the operator of electronic money resources of the order of the client if more the short term is not provided by the contract concluded by the operator of electronic money resources with the client, or rules of payment system ».

Fifthly, electronic money resources are money resources concerning which the payer has the right to give orders exclusively with use of electronic instruments of payment.

In Law item 3 № 161 the electronic instrument of payment is understood as means and (or) a way of expression and the account of orders of the client concerning transfer of the electronic money resources, given to the client the operator of electronic money resources. That is the order of the client is formed and given to the operator of electronic money resources by means of an electronic instrument of payment.

As examples of electronic instruments of payment it is possible to name «electronic purses», bank cards with the physical plastic carrier, the virtual bank cards, the prepaid bank cards, online-banking, cash dispenses. The list of electronic instruments of payment is opened, some electronic instruments of payment can be used at calculations not only electronic money resources, but also money resources. In connection with definition of an electronic instrument of payment of Bank of Russia according to which the electronic instrument of payment is equated to a bank card - «the reloadable multi-purpose prepaid card which can be used for small retail and other payments instead of coins» [68] sees specified deserving criticism. That Bank of Russia defines only one of possible kinds of an electronic instrument of payment, and the sign of an openness of the list of electronic instruments of payment is not specified.

Hence, electronic money resources and money resources possess following general signs:

- By the legal nature concern other property and act as liability laws (incorporeal rights);

- Do not exist in the form of material object, representing accounting records, - the account of money resources is carried out on the personified accounts of clients of electronic money resources - on «the virtual account» client of the operator of electronic money resources, which korrespondiruet to the electronic instrument of payment of the client opened at the operator of electronic money resources of which the client cannot dispose.

Thus despite two signs of money resources designated general and electronic money resources the last essentially differ from the first owing to the following:

- Electronic money resources are preliminary given by the client to the operator of electronic money resources who has not the right to increase the rest of electronic money resources of the client and / or to add on it percent;

- Transfer of electronic money resources is carried out promptly;

- The order of the client is formed and given to the operator of electronic money resources on the basis of an electronic instrument of payment in which relation the size of the rest of electronic money resources is regulated, a total sum of transfers, a way of reception of money resources in exchange for electronic money resources;

- Electronic money resources are the object of the civil rights which directly have been not specified in GK the Russian Federation.

On the basis of the analysis of legal signs of electronic money resources we will define their place among objects of the civil rights - electronic money resources are not named in item 128 GK the Russian Federation other property, that earlier was not defined in jurisprudence, by the legal nature representing liability laws. These are the money resources preliminary given by the payer to the operator of electronic money resources for the purpose of execution of liabilities of the payer before the third parties, considered by the operator of electronic money resources without opening of the bank account to the payer about which the payer has the right to give orders exclusively with use of electronic instruments of payment [69].

That is because of insufficient legislative regulation of concept of electronic money resources us it is innovatively offered to define their legal nature as other property as liability laws, and also subjects of the given legal relations in the form of the payer and the operator of electronic money resources are concretised, the account of directly electronic money resources by the operator of electronic money resources, instead of information on them is designated.

Further we will analyse features of legal regulation of ecash (analogue of electronic money resources in the Russian Federation) according to the right of the European Union, in particular, the Great Britain.

Unlike the legislation of the Russian Federation where cash and money resources concern a category of money, and electronic money resources are considered as separate object of the civil rights - requirement liability laws as other property agree item 128 GK the Russian Federation, in the European Union (further - "EU") according to item 15 of item 4 of the Instruction 2007/64/ЕС from November, 13th, 2007 «About payment services in the home market, making changes in Instructions 97/7/ЕС, 2002/65/ЕС, 2005/60/ЕС and 2006/48/ЕС and cancelling the Instruction 97/5/ЕС» [70] (further - «the Instruction 2007/64/ЕС») the concept of money resources joins banknotes and coins, money for accounts and ecash [71].

In our opinion, legal regulation of EU concerning reference to the general category of money resources of ecash should be estimated critically concerning possibility implementatsii such position in the legislation of the Russian Federation because as it has been specified above, electronic money resources by the right of the Russian Federation are characterised by the essential signs not peculiar neither to cash, nor money resources. Rules of law of the Russian Federation on regulation of money resources as requirement liability laws can be applied concerning regulation of calculations by electronic money resources as liability laws of the requirement owing to similarity of the specified objects of the civil rights only in case of them neprotivorechija essence of electronic money resources.

According to M.Vereekena [72], the European legal regulation of ecash is important for estimating through achievement of following problems: maintenance of protection of consumers and their confidence of execution of transfers by means of ecash; creation of the uniform market of calculations within the limits of EU, including calculations by means of ecash; unfair competition avoidance between being under prudentsialnym the state control the usual credit organisations and the credit organisations - emitters of ecash; creation of legislative definiteness for maintenance of the further development of institute of ecash.

Let's analyse concept of ecash according to item 2 of item 2 of the Instruction 2009/110/ЕС from September, 16th, 2009 «About the organisation, activity and prudentsialnom supervision of activity of establishments of ecash, making changes in Instructions 2005/60/ЕС and 2006/48/ЕС and cancelling the Instruction 2000/46/ЕС» [73] (further - «the Instruction 2009/110/ЕС») for the purpose of its comparison with concept of electronic money resources according to the legislation of the Russian Federation.

First, according to item 2 of item 2 of the Instruction 2009/110/ЕС ecash is incorporeal rights of the holder who has given banknotes, coins, money with

Accounts to the emitter of ecash, to the emitter of ecash [74]. The similar legal nature of electronic money resources is fixed in item 2 of the Law of the Great Britain № 99 from February, 9th, 2011 «On regulation of ecash 2011» [75] (further - «the Law of the Great Britain on regulation of ecash»). Thus both in the Russian Federation, and in EU ecash is not provided by gold [76].

Definition of ecash allocated with M.Tjuboj as sets of mechanisms of the retail payment operations which are carried out by means of use electronic oborudovany as the legal nature of ecash in this case is incorrectly defined sees incorrect, and the exhaustive image specifies not all signs peculiar to ecash [77].

Secondly, unlike legislative regulation of the Russian Federation in a case considered by us ecash is not considered, namely emitted by the authorised subject after reception from the holder of banknotes, coins, money from accounts [78]. According to item 1 of item 11 of the Instruction 2009/110/ЕС emitters let out ecash under a face-value of the banknotes given by the holder, coins, money from accounts that proves to be true in item 2 of the Law of the Great Britain on regulation of ecash.

As truly specifies M.Tjuba, the holder always is obliged to give preliminary to the emitter of ecash of a banknote, a coin, money from accounts [79].

A.Bal notices, that it is a question of activity of the identified emitter of ecash and existence of communication of ecash with traditional monetary system which, for example, is expressed in uniform settlement monetary units [80].

On the one hand, it is represented, that the price of process of issue of ecash is low. On the other hand, there is a risk of that issue of ecash can become uncontrollable and will lead to a situation in which release of ecash which has been not provided with banknotes will be carried out, coins, money on accounts [81]. In that case issue of ecash can have negative influence on functioning as a whole economic. In connection with specified legal regulation of the Russian Federation concerning definition of exclusively not issue nature of electronic money resources is represented true - the operator of electronic money resources does not emit electronic money resources, and acts as the addressee of transfers of money resources from the client which it is obliged to consider in special way.

As it is underlined in the literature, to level risk of uncontrollable issue of ecash it is possible, for example, at the expense of competition creation between emitters, responsibility putting on on the emitter for poor money resources issue of ecash [82].

Expedient sees entered into Instruction item 12 2009/110/ЕС an interdiction concerning emitters of ecash to charge percent on ecash and to carry out other various payments concerning ecash. According to item 13 of a preamble of the Instruction 2009/110/ЕС delivery of credits at the expense of ecash is forbidden - in the literature imperativeness of the given position proves to be true: it is underlined, that the emitter of ecash has not the right to give out the credit at the expense of ecash [83]. We will notice, that in item 6 of item 7 of the Law № 161 the interdiction of charge by the operator of electronic money resources of percent on the rest of electronic money resources of the payer also is established. Thus, within the limits of legal regulation of EU and the Russian Federation acts as the purpose of use of ecash and electronic money resources fulfilment of payments, instead of savings of ecash and electronic money resources accordingly.

Thirdly, ecash is stored in electronic form [84]. According to item 8 of a preamble of the Instruction 2009/110/ЕС ecash can be stored on the payment device belonging on the legal title to the holder of ecash, or on the remote server which is not belonging on the legal title to the holder of ecash, that is on a server of the emitter of ecash or involved with it for the specified purposes of the third party. In the latter case the order is carried out by ecash by means of the special account opened for the holder for ecash. Thus we will notice, that the concept of the special account for ecash does not reveal neither in the Instruction 2009/110/ЕС, nor in other Instruction of EU [85]. In the right of the Russian Federation it agree item 18 of item 3 of the Law № 161 order about transfer of electronic money resources it is constituted, makes sure and transferred by the client by means of an electronic instrument of payment - to the client the bank account does not open for this purpose.

In the literature the fair choice of the wide formulation of the term «the payment device belonging on the legal title to the holder of ecash» on which ecash is stored that allows not to make change to EU current legislation in connection with development of technological progress and occurrence of new kinds of corresponding payment devices is marked, and also it is offered to enter not exhaustive list of such devices for the purpose of maintenance of "a minimum level of legal definiteness» [86]. The specified offer sees to us reasonable for the reason, that will allow to reveal additional criteria concerning payment devices which can be used for storage of such especial object of the civil circulation as ecash.

Thus it is necessary to agree with M.Tjuboj noticing, that directly it is not defined, that means storage in electronic form, specifying on necessity of wide understanding of the term "elektronno", including any technical device for which electric, digital, magnetic, optical, electromagnetic properties [87] are peculiar.

The general provisions on storage of ecash in electronic form contain in item 2 of the Law of the Great Britain on regulation of ecash. It is represented, that at specified article and in item 8 of a preamble of the Instruction 2009/110/ЕС there is a defect legal technicians as, recognising ecash as requirement liability laws, it is necessary to come to conclusion about storage in electronic form information on the size of ecash, instead of ecash [88].

Thus in the legislation of the Russian Federation there are no instructions that electronic money resources are stored in electronic form on special devices and that to them has access the client, - under item 18 of item 3 of the Law № 161 information on the size of the money resources given by the client without bank account opening is considered by the operator of electronic money resources. According to item 18 of item 3 of the Law № 161 order about transfer of electronic money resources is constituted, makes sure and transferred by the client by means of an electronic instrument of payment - to the client the bank account does not open. Thus, we suggest to bring respective alteration in item item 19 3 Laws № 161 and to define an electronic instrument of payment as «means and (or) a way, allowing the client of the operator on transfer of money resources to receive the information on the size of the money resources given by the client without bank account opening, to constitute, certificate and transfer orders with a view of realisation of transfer of money resources within the limits of applied forms of clearing settlements with use of information-communication technologies, electronic data carriers, including payment cards, and also other technical devices» [89].

Fourthly, ecash is used for carrying out of payment transactions and is accepted physical or the legal bodies who are not the emitter of ecash [90] that proves to be true in item 2 of the Law of the Great Britain on regulation of ecash. As truly makes comments M.Tjuba's on given legal status, calculations by ecash cannot be carried out between the holder and the emitter [91]. According to item 18 of item 3 of the Law № 161 client gives money resources to the operator of electronic money resources also for execution of its liabilities before the third parties, excepting the operator of electronic money resources.

Among immanently inherent signs of ecash of O.Shaj and J.Tarkka designate convenient and fast realisation of calculations in electronic form, absence of conducting book keeping of movement of ecash and the control over calculations by ecash in any central register because act as clients exclusively not identified payers [92]. It is represented, that last sign does not answer the developed practice of calculations by ecash - among payers the identified payers are allocated not only not identified, but also.

M.Tjuba notices, that a mainstream of legal regulation of ecash in EU - harmonisation prudentsialnogo the control by means of introduction of system legal regulation for the purpose of full realisation of advantages peculiar to ecash [93].

Let's notice, that in the official answer of the European Commission it is designated [94], that the concept of ecash containing in the Instruction 2009/110/ЕС, is formulated widely for definition of not exhaustive list of criteria of activity on issue of ecash and definition of concept of ecash - possibility thereby is given to EU member states independently to specify criterion for that establishment, whether is estimated activity by activity on issues of ecash, and analyzed object of civil law - ecash.

According to O.Akindemovo [95] the approach applied within the limits of EU to regulation of ecash can be described as «ogranichitelno ordering» as existence of the general market of EU assuming levelling of trading barriers, leads to that the minimum standards and requirements within the limits of the centralised European right which are detailed further in the national law of each EU member state are established. For example, in item 3 of the Law of the Great Britain on regulation of ecash it is directly specified, that ecash are not following blessings:

- Monetary cost which is stored on the tools used only for acquisition of the goods or services: monetary cost is stored in or on devices of the emitter of ecash or according to conditions of the commercial agreement concluded with the emitter of ecash, monetary cost is translated in fee of the limited quantity of providers of services or concerning the limited quantity of the goods and services;

- Monetary cost which is translated for fulfilment of calculations by means of the telecommunication, digital or technological device when the paid goods or services are given and used through the telecommunication, digital or technological device provided that the telecommunication, digital or technological operator does not operate as the intermediary between the user of payment system and the supplier of the goods or services.

In the foreign literature for the purpose of increase in efficiency of a turn of ecash it is underlined necessity of realisation of following actions: supervision of activity of the emitter of ecash; exhaustive and transparent legal regulation regarding exact definition of the rights and duties of participants of a turn of ecash; technical safety of a turn of ecash; protection against criminal offences in sphere of a turn of ecash by means of implementatsii corresponding schemes on a turn of ecash; giving of regular reports by the emitter of ecash to the central bank [96].

Thus, we define for the first time a place of electronic money resources among objects of the civil rights when electronic money resources concern to not named in item 128 GK the Russian Federation to other property as represent the incorporeal rights (liability laws) which are distinct from money resources. These are the money resources preliminary given by the payer to the operator of electronic money resources for the purpose of execution of liabilities of the payer before the third parties, considered by the operator of electronic money resources without opening of the bank account to the payer about which the payer has the right to give orders exclusively with use of electronic instruments of payment. Hence because of insufficient degree of legislative regulation of concept of electronic money resources us definition of their legal nature as other property as liability laws is offered not allocated earlier in the right and the doctrine, and also subjects of the given legal relations in the form of the payer and the operator of electronic money resources are concretised, the account of directly electronic money resources by the operator of electronic money resources, instead of information on them is designated.

According to the right of EU ecash by the legal nature also is liability laws - incorporeal rights of the holder who has given banknotes, coins, money from accounts to the emitter of ecash, to the emitter of ecash, however along with banknotes and coins, money on accounts, ecash concerns the general patrimonial category of money resources.

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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

More on topic § 2. The legal nature of electronic money resources:

  1. § 3. A parity of concepts of electronic money resources and an electronic instrument of payment
  2. § 1. The operator of electronic money resources
  3. CHAPTER 2. SUBJECTS OF LEGAL RELATIONS ON TRANSFER OF ELECTRONIC MONEY RESOURCES
  4. § 2. The conclusion and the maintenance of the contract on transfer of the electronic Money resources
  5. Dogovory about transfer of electronic money resources with use of payment cards
  6. § 3. Payment return on disputable operation at calculations by the electronic Money resources
  7. § 1. A place of electronic money resources among objects civil The rights
  8. CHAPTER 1. CONCEPT OF ELECTRONIC MONEY RESOURCES
  9. CHAPTER 3. REALIZATION OF TRANSFER OF ELECTRONIC MONEY RESOURCES
  10. Measures of civil responsibility of banks for infringement of the rights and legitimate interests of clients while translating electronic money resources
  11. the Chapter III. Civil responsibility of banks for infringement of the rights and legitimate interests of clients while translating electronic money resources.
  12. 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
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  14. inheritance of the money resources brought into the accounts in banks, other credit organisations.
  15. § 5. Features of fulfilment of testamentary dispositions by the rights to money resources banks