预付卡新法规定评述(中文稿)binligual.docx

Legal Updates1. Notice of the Peoples Bank of China on Further Strengthening the Administration of Prepaid Card Business (Yin Fa 2012 No.234)2. Administrative Measures for the Prepaid Card Business of Payment Institutions (Announcement 2012 No. 12 of the Peoples Bank of China)3. Measures for the Administration of Single-purpose Commercial Prepaid Cards (for Trial Implementation) (Decree No. 9 2012 of the Ministry of Commerce)近年来，由于信息技术的发展和小额支付服务市场创新的客观需要，商业预付卡市场发展迅速，商业预付卡在减少现钞使用、便利公众支付、刺激消费等方面发挥了一定作用。为规范商业预付卡管理、严肃财经纪律、防范金融风险、促进反腐倡廉，中国人民银行从2010年开始连续出台多部法令和公告，比如，2010 年 6 月和 12 月中国人民银行先后发布了非金融机构支付服务管理办法（中国人民银行令2010第2号，以下简称“2号令”）和非金融机构支付服务管理办法实施细则（中国人民银行公告2010第17号，以下简称“17号公告”），此后，2011 年 5 月中国人民银行等七部门发布了关于规范商业预付卡管理的意见（以下简称“25号文” ）。In recent years, the market of commercial prepaid cards has witnessed rapid growth to adapt to the development of information technology and the objective market innovation needs of micro-payment services. On the whole, commercial prepaid cards have been helpful to a certain extent in reducing the use of cash, facilitating the payment, and stimulating consumption. With a view to regulating the administration of commercial prepaid cards, enforcing financial and economic discipline, guarding against financial risks, promoting anti-corruption and advocating clean governance, the Peoples Bank of China has put forward several decrees and announcements since 2010, such as the Measures for the Administration of Payment Services of Non-Financial Institutions (Decree No. 2 2010 of the Peoples Bank of China, hereinafter referred to as “Decree No. 2”) in June 2010 and the Implementing Regulations of the Measures for the Administration of Payment Services of Non-Financial Institutions (Announcement No. 17 2010 of the Peoples Bank of China, hereinafter referred to as “Announcement No. 17”) in December 2010; afterwards, seven departments including the Peoples Bank of China issued the Opinions on Regulating the Administration of Commercial Prepaid Cards (Guo Ban Fa 2011 No. 25, hereinafter referred to as “Document No. 25”) in May 2011.With a view to implementing Order No. 2 and Document No. 25, maintaining the order of the payment service market and further strengthening the administration of prepaid card business, the Peoples Bank of China issued the Notice of the Peoples Bank of China on Further Strengthening the Administration of Prepaid Card Business (Yin Fa 2012 No. 234, hereinafter referred to as “Document No. 234”) on September 26, 2012 and the Administrative Measures for the Prepaid Card Business of Payment Institutions (Announcement No. 12 2012 of the Peoples Bank of China, hereinafter referred to as “Announcement No. 12”) on September 27, 2012. Before that, the Ministry of Commerce also issued the Measures for the Administration of Single-purpose Commercial Prepaid Cards (for Trial Implementation) (Decree No. 9 2012 of the Ministry of Commerce, hereinafter referred to as “Decree No. 9”) in September 21, 2012. The following reviews are mainly focused on Announcement No. 12 and Decree No. 9. 为落实2号令和25号文，维护支付服务市场秩序，进一步加强预付卡业务管理，中国人民银行于2012年9月26日和27日，连续发布了中国人民银行关于进一步加强预付卡业务管理的通知（银发2012234号，以下简称“234号文”）和支付机构预付卡业务管理办法（中国人民银行公告2012第12号，以下简称“12号公告”）；在此之前，商务部也于2012年9月21日发布了单用途商业预付卡管理办法（试行）（商务部令2012第9号，以下简称“9号令”），下文主要对12号公告和9号令进行评述。1 关于“预付卡”的定义和分类Definition and Classification of Prepaid CardsDecree No. 2 and Announcement No. 17 have regulated the framework of payment services of non-financial institutions by stipulating that prepaid cards refer to cards or pins issued with value stored using technologies such as magnetic stripes and chips which can be used to purchase goods and services provided not by the card issuer with the purpose of gaining profits, however excluding: (1) prepaid cards for the sole purpose of issuing social security benefits; (2) prepaid cards for the sole purpose of using public transportation; (3) prepaid cards for the sole purpose of paying phone bills and other communications fees; and (4) prepaid cards of which the issuing institution and the contracted merchant belong to the same legal person. These restrictions are reflected in Document No. 25 in that “commercial prepaid cards are divided into two types categorized by card issuers: the first is the multi-purpose prepaid cards issued by specialized card issuers that may be used by multiple legal persons in multiple regions and for multiple sectors; the other is the single-purpose prepaid cards issued by commercial enterprises that can only be used for purchasing goods and paying for services in the card issuing enterprises or the chain commercial enterprises sharing the same brand.”2号令和17号公告以框架性的形式对非金融机构支付服务进行了规范，规定了“预付卡”是指以营利为目的发行的、在发行机构之外购买商品或服务的预付价值，包括采取磁条、芯片等技术以卡片、密码等形式发行的预付卡，但不包括：（一）仅限于发放社会保障金的预付卡；（二）仅限于乘坐公共交通工具的预付卡；（三）仅限于缴纳电话费等通信费用的预付卡；（四）发行机构与特约商户为同一法人的预付卡。”这种限定性体现在25号文时，将预付卡“按发卡人不同可划分为两类：一类是专营发卡机构发行，可跨地区、跨行业、跨法人使用的多用途预付卡；另一类是商业企业发行，只在本企业或同一品牌连锁商业企业购买商品、服务的单用途预付卡。” These regulations combined with the definitions in Announcement No. 12 that “prepaid cards refer to any prepaid value that is issued by a card issuer using a specific carrier and in a specific form and can be used for purchasing goods or services at places outside the card issuer”, and in Decree No. 9 that single-purpose prepaid cards refer to “prepaid vouches issued by enterprises in the industries of retailing, lodging and catering, and residential services to pay for commodities and services in the enterprise (group) or the chain enterprises under the same brand, including physical cards with magnetic strip cards, chip cards and paper coupons as carriers, as well as virtual cards with password, string of code, graphics and biometric information as carriers” suggest that in regulating commercial prepaid cards, the administrations classify prepaid cards into two categories supervised by different institutions according to different regulations and policies. In a word, multi-purpose prepaid cards are supervised by the Peoples Bank of China in accordance with Announcement No. 12; without approval of the Peoples Bank and acquiring the payment business license, any non-financial institutions may not issue multipurpose prepaid cards, and violators will be investigated and punished for illegally conducting payment and settlement businesses. Whereas single-purpose prepaid cards are supervised by the Ministry of Commerce pursuant to Decree No. 9, the issuance of which does not require the acquiring of a payment business card from the Peoples Bank.结合新发布的12号公告中对支付机构预付卡的定义，即“发卡机构以特定载体和形式发行的、可在发卡机构之外购买商品或服务的预付价值”和商务部9号令中单用途商业预付卡的定义，即“从事零售业、住宿和餐饮业、居民服务业的企业法人发行的，仅限于在本企业或本企业所属集团或同一品牌特许经营体系内兑付货物或服务的预付凭证，包括以磁条卡、芯片卡、纸券等为载体的实体卡和以密码、串码、图形、生物特征信息等为载体的虚拟卡”可以看出，在商业预付卡的规制方面，我国采取了区分预付卡的类别，从而由不同的机构进行监管并适用不同的规章制度和政策。简单来说，就是“多用途预付卡”由人民银行管理并适用12号公告，未经人民银行批准获得支付业务许可证，任何非金融机构不得发行多用途预付卡，一经发现，按非法从事支付结算业务予以查处；而“单用途预付卡”由商务部管理并适用9号令，单用途预付卡的发行无须获得人民银行颁发的支付业务许可证。 2 12号公告和9号令的核心内容Core Content of Announcement No. 12 and Decree No. 92.1 三项制度Three Systems两者均按25号文的要求全面落实了“三项制度”，即实名登记制度、非现金购卡制度和限额发行制度。根据两文件，个人或单位购买充值记名卡的，或一次性购买1万元（含）以上不记名卡的，应实名购卡。单位一次性购买卡金额达5000元（含）以上或个人一次性购卡金额达5万元（含）以上的，应通过银行转账，不得使用现金。单张记名卡限额不得超过5000元，单张不记名卡限额不得超过1000元。这三项制度的规定有利于防止预付卡被用于洗钱、套现等活动。关于支付机构或者企业违反该三项制度的责任问题，9号令特别规定“由行为发生地县级以上地方人名政府商务主管部门责令限期改正；逾期仍不改正的，处以1万元以上3万元以下的罚款”；但12号公告并没有针对支付机构的该类违法行为的责任进行规定，只是笼统的规定“违反本办法的，人民银行可依据2号令进行处罚”。Both Announcement No. 12 and Decree No. 9 have required full implementation according to Document No. 25 of three systems of card purchase by real name, non-cash card purchase and card purchase with limited sum. Individuals or units to buy recharge registered card, or a one-time purchase of 10,000 yuan (or more) anonymous card, should real name Gouka unit is a one-time purchase single-purpose card amounted to 5,000 yuan (inclusive) above or personal disposable Gouka amount of $ 50,000 (including offsite) above, as well as units or individuals Gouka should be made by bank transfer, cash may not be used. leaflets bearer card limit of not more than 5000 yuan, leaflets anonymous card limit of not more than 1000 yuan., and imposed detailed provisions on the card purchase agreement, information confidentiality, return of goods and return of cards.2.2 便民和消费者权益保护Convenience and Consumer ProtectionIn respect of convenience, both documents maintain the flexibility of system by promoting the positive effects of prepaid cards in the field of small amount payment. For example, Announcement No. 12 allows convenient purchase and top-ups of prepaid cards with maximum amount less than RMB 200, redemptions of the widely-used unregistered prepaid cards in the field of public transport with a balance of less than RMB 100 despite the general rule that unregistered prepaid cards shall be irredeemable, and online payment of utility fees through prepaid cards. And Decree No. 9 allows refund less than RMB 100 to be paid in cash in cases of return of goods or return of cards.关于便民方面，两文件适度把握制度设计的灵活性，充分发挥预付卡在小额支付领域的积极作用，比如12号公告规定对资金限额在200元以下的预付卡在销售、充值方面给予便利；在不记名预付卡不得赎回的前提下，对与老百姓关系密切的公交行业不记名预付卡，允许余额在100元以下时按约定赎回；允许预付卡通过网络支付渠道缴纳公用事业费。9号令规定退货或者退卡时金额不足100元可以支付现金等。As to protecting consumers rights, both documents safeguard the rights to: (i) information, that card issuers shall notify purchasers of and provide them with the rules on prepaid cards or enter into agreements with them on prepaid cards, clarifying the methods for purchase, top-up, use, return of the card, declaration and assignment and charging items and standards, etc. so as to avoid prejudice of card holders interest due to unclear or incomplete agreement or lack of knowledge; (ii) usage of fund, that registered prepaid cards may not have a term of validity, and unregistered prepaid cards may not have a term of validity of not less than 3 years, and with regard to prepaid cards whose term of validity has expired but in which there are still unused funds, the card issuers shall provide renewal, activation, replacement and other services to ensure that the card holders can continue to use such cards; (iii) basic services, that payment institutions shall provide basic services such as balance inquiry, declaration, return of goods and return of cards; (iv) information confidentiality, that card issuers shall strengthen protection of the information of card purchasers and card holders and avoid the disclosure or abuse of identity information and transaction information.二文件在消费者权利保护方面，一是保障知情权，要求发卡机构履行告知义务，向购卡人公示、提供预付卡章程或与其签订协议，明确购买、充值、使用、退卡、挂失、转让的方式以及收费项目和标准等内容，防止因约定不明确、协议不完整、持卡人不知情等，导致持卡人利益受到侵害；二是保障资金使用权，明确记名卡不得设有效期，不记名卡有效期不得少于3年；对于超过有效期尚有资金余额的不记名预付卡，发卡机构应当提供延期、激活、换卡等服务，保障持卡人继续用卡的权益；三是保障基本服务获取权，要求支付机构应按规定提供余额查询、挂失、退货、退卡等基本服务等；四是保护消费者信息，要求发卡机构加强措施保护购卡人和持卡人的信息，防止身份信息和交易信息的泄露和滥用。2.3 监管制度 Supervisory System(1) 支付机构或发卡企业的主体资格的监管Supervision of Qualifications of Payment Institutions or Card IssuersDocument No. 12 is different from Decree No. 9 in that the former adopts “license system” and requires payment institutions to acquire a payment business license, i.e. they shall either be card issuers permitted to conduct the “prepaid card issuance and acceptance” business, or acceptance agencies permitted to conduct the “prepaid card acceptance” business, according to the conditions set forth in Decree No. 2; whereas the later adopts “record-filing system”, and for example, under the principle of territorial jurisdiction and categorized supervision clarifies the issues regarding record-filing time limit, authority, necessary materials and alteration. The enterprises issuing large amount of cards, the famous card issuance enterprises and the card issuance groups are required to provide their information such as their financial positions so that the record-filing authorities can conduct the risk-based supervision; as for other card issuance enterprises, Decree No. 9 has simplified the procedure of their record-filing.12号文和9号令采取了不同的方式，前者采用“许可制”，支付机构需取得支付业务许可证，具体分为获准办理“预付卡发行与受理”业务的发卡机构和获准办理“预付卡受理”业务的受理机构，至于取得支付业务许可证的条件则应参见2号令；后者则采取“备案制”，比如根据属地管理、分类监管的原则，分别明确了各类发卡企业的备案时限、备案机关、需提供的材料和备案变更等问题。对于规模发卡企业、品牌发卡企业和集团发卡企业，要求其提供财务状况等信息，以便备案机关对其进行风险监测；对于其他发卡企业，9号令简化了其备案程序。(2) 客户预付资金的安全管理Safety Management of Client Prepaid FundAnnouncement No. 12 requires card issuers to directly transfer settlement funds to its franchised merchants through its custodian bank for customer reserve funds and acceptance agencies may not participate in fund settlement. Where a card issuer entrusts a cooperative selling agency to sell its prepaid cards, it shall have the proceeds of sale directly deposited into its bank account for reserve funds so as to avoid fund risks that may occur in the prepaid card business. While Decree No. 9 established the system of deposit and custody of prepaid fund, which specifies that the enterprises issuing large amount of cards, the card issuance groups and the famous card issuance enterprises shall entrust portion of the pre-collected fund to commercial banks for custody for the purpose of avoiding excessive or arbitrary issuance of prepaid cards by card issuers and reducing prepaid fund risks. Considering that prepaid funds have become important sources of fund to some enterprises, Decree No. 9 also stipulates offset measures for depository funds by allowing card issuers to replace the fund custodian agreement with guarantee insurance policies, warranties, bank guarantees, etc. so as to lessening the operation burden of enterprises to the largest extent.12号公告要求发卡机构应当通过其客户备付金存管银行直接向特约商户划转结算资金，受理机构不得参与资金结算；并要求发卡机构委托销售合作机构代理销售的，代理销售资金应直接存入发卡机构备付金银行账户，以切实防范预付卡业务中可能出现的资金风险。9号令则设立了资金存管制度，规定规模发卡企业、集团发卡企业和品牌发卡企业应将部分预收资金委托商业银行进行监管，旨在遏制发卡企业超发、滥发行为，降低预收资金风险。考虑到预收资金已成为部分商业企业重要的资金来源，9号令同时设定了存管资金冲抵措施，允许发卡企业以保证保险保单、担保保函、银行保函等形式代替资金存管协议，从而最大程度降低企业经营负担。3 评述 CommentsThe issuance of Announcement No. 12 and Decree No. 9 plays a positive role in improving the following protruding issues existing in the market of commercial prepaid cards, such as lax supervision and regulation, violation of financial discipline, lack of a risk prevention mechanism, using taxpayers money to pay for personal consumption, and taking bribes offered in the form of prepaid cards. Decree No. 9 in particular, has made up the legislative deficiency in the field of single-purpose credit cards, strengthened the regulation of the qualifications of card issuers and set restrictions as well as supervision measures and punishment on the issuance, purchase and risk control of prepaid cards, which would contribute to the compliance of card issuers. At the same time, some defects exist in both new regulations. 12号公告和9号令的出台对改善商业预付卡市场存在的监管不严、违反财务纪律、缺乏风险防范机制、公款消费和收卡受贿等突出问题，维持税收和财务管理秩序，制止腐败行为起到了一定积极作用，尤其9号令，弥补了规制单用途商业预付卡方面的立法缺失，加强了对发卡企业主体资格的规范，同时也对预付卡的发行、购买和风险防范等方面进行了限制，明确设定了监管和处罚措施，这将有利于发卡企业遵照执行；同时两部新法也存在某些缺陷。3.1 完善预付卡退出机制Improvement in Quitting System of Prepaid CardsAnnouncement No. 12 explicitly stipulates the redemption system of registered prepaid cards. As for single-purpose prepaid cards, Decree No. 9 makes no distinction between registered cards and unregistered cards by stating that rules or purchase agreements on single-purpose prepaid cards shall contain the method of return of cards and card issuers shall provide redemption services in accordance with the rules or agreements. Upon the redemption, card issuers or card sellers shall request the card holders to show their effective identification and provide their names, effective ID Number, Card Number and amount, etc. The balance shall be returned to the bank account, which shall be recorded by card issuers or card sellers as well, under the same name as the card holder. Where the balance is less than RMB 100 (including RMB 100), it can be paid in cash. This has effectively restricted the usage of unreasonable terms like “once sold, no refund” in the field of especially single-purpose commercial prepaid cards and the scalping market thus created, which is conducive to promoting the market orde