Research on the Legal Regulation of China’s New Internet Payment中国新型互联网支付法律监管问题研究

　　本书的主要研究对象和重点是伴随着中国新型互联网支付而发生的金融监管法律关系。本书深入研究了中国互联网支付两大重要组成部分，即互联网第三方支付和虚拟货币支付。结合英美法当中的经典的一般性监管理论和金融监管理论，同时结合欧盟法对于互联网支付的法律监管的理论与实践，历史地、全面地、系统性地研究了有关中国新型互联网支付的法律问题，包括市场准入、持续性监管要求、沉淀资金监管、金融风险防范、监管策略与方式选择、促进技术创新与进步等法律问题。*后对我国在该领域能够考虑从发达经济体借鉴的经验做了抽象和总结。

　　李文,博士,中国政法大学副教授，硕士研究生导师, 研究领域为：金融法、国际金融法、英美法和信息技术法。

　　李文,博士,中国政法大学副教授，硕士研究生导师, 研究领域为：金融法、国际金融法、英美法和信息技术法。留英12年，是极少数在英国法学院获得终身教职的华人学者之一。在英文学术期刊和国际会议发表论文多篇。

Contents
Chapter 1Introduction
1. Introduction
1.1Subjects of research
1.2Research Questions
1.3Methodology
1.4Literature and other sources
2. Sources of law and hierarchy of the Chinese law in the Chinese legal system
2.1Legislations
2.1.1The National People s Congress and its Standing Committee: Constitution and Laws
2.1.1.1Constitution
2.1.1.2Laws（法律）
2.1.2The State Council: Administrative Regulations
2.1.3Local People s Congresses: Local Regulations, Autonomous Regulations, and Specific Regulations
2.1.3.1Provincial governments
2.1.3.2Governments of the Provincial Capital Cities or Larger Cities
2.1.3.3Governments of the Special Economic Zones
2.1.3.4Governments of Autonomous Areas
2.1.4Ministries of the State Council: Departmental Rules
2.1.5Local People s Governments: Local Rules
2.2Interpretations of laws
2.3Case law
2.4International treatiesChapter 2Basic Concepts of Money, Payment and Chinese
Payment Systems
1. Basic concepts of money, payment and payment system models
1.1What is money?
1.2What is payment?
1.3Two basic fund transfer models: credit transfer and debit transfer
1.4Two basic payment systems: accountbased system and cashbased system
2.Chinese payment systems
2.1A brief history and the development of the Chinese payment system
2.1.1Planned economy stage (1949-1978)
2.1.2Initial reform and opening up stage (1978-1992)
2.1.3The stage between 1992 and 2000
2.1.4New century stage (2000 and afterwards)
3. An analytical introduction to new Internet payment in the Internet era in contemporary China
3.1Categorizations of Renminbi new Internet payment
3.1.1Internet as a new window to facilitate Renminbi transfers, where Internet third party payment providers are not involved
3.1.1.1Internet banking transfer payment
3.1.1.2Direct connection between the Internet businesses and Internet banking
3.1.2The Internet third party payment
3.1.2.1The Internet third party gateway payment
3.1.2.2Virtual accounts payment
3.2Virtual currency new Internet payment
3.3Cryptocurrency
4. Conclusion Chapter 3Theories of Regulation, Banking and Financial Regulation and Payment Services RegulationIntroduction
1. General theory of regulation
1.1What is regulation?
1.2Why regulate?
1.2.1Monopolies and natural monopolies
1.2.2Windfall profits
1.2.3Externalities
1.2.4Information inadequacies
1.2.5Continuity and availability of service
1.2.6Anticompetitive behaviour and predatory pricing
1.2.7Public goods and moral hazard
1.2.8Unequal bargaining power
1.2.9Scarcity and rationing
1.2.10Rationalization and coordination
1.2.11Planning
1.2.12Other regulatory rationales
1.3What is a good regulation?
2. Theory of banking and financial regulation and its application to the regulation of Internet payment services
2.1Definition of bank regulation and bank supervision
2.2Arguments and justifications for regulating banking and financial sectors, and applications to Internet payment services
2.2.1Fundamental justification: confidence
2.2.2Three main arguments for the regulation of banking and financial sectors and Internet payment services
2.2.2.1The first argument: protection against monopolies
2.2.2.2The second argument: client protection
2.2.2.3The third argument: ensuring systemic stability
2.2.3Specific and standard justifications of government regulation and their applications to Internet payment services
2.2.4An additional argument and justification for regulating new Internet payment services
3.General principles of payment systems regulation
4.Specifically, what regulatory principles should be considered in a good regulation of new Internet payment in China?
Chapter 4The Regulation of Internet Third Party Payment Providers in China Licensing and Retained Funds
Regulation Introduction
1.Market layout of the Internet third party payment providers in China
1.1Market layout and relevant statistics
1.2Industry features: from Internet payment 1.0 to Internet payment 2.0
1.3Industry features: from Internet payment 2.0 to Internet payment 3.0
2.Two crucial legislations
2.1Order of the People s Bank of China No. 2 ［2010］ “Measures of Management on NonFinancial Institutions Payment Services”
2.2Announcement No. 43 ［2015］ of the People s Bank of China Administrative Measures for the Online Payment Business of Non Banking Payment Institutions
3. Legal issues on Internet third party payment providers: the relationship between the regulator and providers
3.1Requirements to entry for Internet third party payment providers to operate as legitimate providers
3.1.1Reasons why the People s Bank of China proposed to impose licensing
3.1.2The current licensing scheme may be slightly relaxed
3.1.3The role of the market
3.2Retained funds in Internet third party payment providers and the regulation
3.2.1In traditional banking electronic funds transfers, retained funds in credit transfers differ from retained funds in debit transfers
3.2.1.1Retained funds in credit transfers
3.2.1.2Retained funds in debit transfers
3.2.1.3Retained funds in the Internet third party payment providers
3.2.2Regulation of retained funds in the Internet third party payment providers
4. Conclusion
Chapter 5Virtual Currency and Its Regulation in China
1. Definition and analytical introduction of virtual currency
1.1Definition
1.2Is virtual currency “money” in economics?
1.3Is virtual currency “money” in legal sense?
1.4Distinctions between virtual currency and statesissued currency
1.4.1Issuers
1.4.2Risks
1.4.3Regulation
1.5Why did virtual currency exist and develop in China?
2. Life cycle and industry chain of virtual currency in China
2.1Components of the chart
2.1.1Regulators
2.1.2Virtual currency issuers inside/outside the Internet games
2.1.3Virtual currency players
2.1.3.1Ordinary virtual currency players
2.1.3.2Gold (virtual currency) farmers
2.1.3.3Virtual currency speculators
3. Arguments and justifications on regulating virtual currency in China
3.1Economic arguments for regulating virtual currency
3.1.1Virtual currency will not cause inflation in the real economy and will not affect Renminbi market
3.1.2Virtual currency still needs to be regulated
3.2Ethical and moral arguments for regulating virtual currency
4.Analysing current legal regulation of virtual currency in China
4.1“Notice on Regulating Business Order of Internet Games and Prohibiting Engaging Gambling through Internet Games”
4.2“Notice on Further Enhancing the Regulatory Work of Cyber Cafes and Internet Games”
4.3An Official Reply by the China State Administration of Taxation on “individuals gain profits by trading virtual currency through the Internet must pay personal income tax”
4.4A Public Announcement by the People s Bank of China
4.5“Notice of Enhancing Regulatory Work on Internet Games Virtual Currency”
4.5.1The first comprehensive and systematic regulatory Measures on virtual currency
4.5.2Defining “Internet games virtual currency”
4.5.3Regulating market behaviours
4.5.4A strong consumer protection approach
4.5.5Setting up an excellent example for the world
4.6“Provisional Measures of Management on Internet Games”
5. Conclusion
Chapter 6Internet Third Party Payment, Virtual Currency and Their Regulation in the EU and UK
1. Introduction
1.1Overview
1.2Internet third party payment in the EU—with the example of Paypal Europe
1.3Virtual currencies, virtual  property and economy in virtual worlds: how people interact economically in the virtual environments?
1.4Electronic money and electronic money regulations
2. Can the Electronic Money Directive 2000 and the Electronic Money Directive 2009 apply to Internet third party payment and virtual currency?
2.1Background of the Electronic Money Directive 2000
2.2Definition of e money in the Electronic Money Directive 2000
2.2.1The first requirement
2.2.2The second requirement
2.2.3The third requirement
2.3Definition of emoney in the Electronic Money Directive 2009
2.4Selective key regulatory aspects of the Electronic Money Directive
2000 and the Electronic Money Directive 2009 on Internet third
party payment and virtual currency
2.4.1From “institutional regulation” approach to “functional regulation” approach
2.4.2Capital requirements
2.4.2.1Initial capital requirements
2.4.2.2Ongoing capital requirements and own funds
2.4.3Limitations of investments and safeguarding rules
2.4.4Issuance and redeemability
3.Can the EU Payment Services Directive 2007 and EU Payment
Services Directive 2015 apply to Internet third party payment and virtual currency?
3.1Background of the Payment Services Directive 2007
3.2Scope of the Payment Services Directive 2007 and Internet third party payment and virtual currency
3.3Obligations placed by the Payment Services Directive 2007 on Internet third party payment providers and virtual currency operators
3.4The new EU Payment Services Directive 2015
4.Other relevant laws apart from the Electronic Money Directives 2000/2009 and the Payment Services Directive 2007
5. Conclusion
Chapter 7Conclusion—Experience that China and the EU/UK May Learn from Each Other
Introduction
1.Experience 1:Institutional regulation or functional regulation (activities regulation), EU s experience and China s choice
1.1Theory of financial regulatory approaches
1.1.1Four types of regulatory approaches in financial regulations
1.1.2Institutional regulation and functional regulation,the EU s application
1.2The reason why the EU electronic money regulatory regime switched from institutional regulation to functional regulation (activities regulation)
1.3China s situation and China s choice in the regulatory approach of Internet third party payment
1.4China s situation and China s choice in the regulatory approach of virtual currency
1.5Transition in a big picture
1.6Issues of functional regulation in context
2.Experience 2: Clearer and wider definition
2.1EUs experience on defining “electronic money” in the Electronic Money Directives
2.2Legal definitions of the Internet third party payment and virtual currency in China
2.2.1Legal definition of the Internet third party payment
2.2.2Legal definition of virtual currency
3.Experience 3: Light touch regulation
3.1EU s experience on light touch regulation
3.2Is the regulation of Internet third party payment and Internet games virtual currency in China a light touch regulation?
4. The key experience that the EU/UK may learn from China
5.Conclusion for this chapter as well as for the whole book
Appendix 1
Appendix 2
Appendix 3
Bibliography

　　Author: Li Wen, Associate Professor of Law at China University of Political Science and Law (李文, 中国政法大学副教授)。

　　Abstract: New and emerging Internet payment services have been developed in China which are becoming increasingly important for the Chinese electronic commerce, mobile commerce, banking and financial system, as well as the whole economy. Along with the development of the “Belt and Road Initiative”, Chinas new and emerging Internet payment services are gaining cross-border and international influence. The most important forms of the new and emerging Internet payment services are Internet third party payment and virtual currency. As with all financial systems, there is a perceived need for regulation. China has begun to regulate these systems through a number of “Measures”, “Notices”, “Reply”, “Public Announcements” and cases. On the basis of general regulatory theories, the regulation of Internet third party payment and virtual currency in China and in the European Union (EU)/United Kingdom (UK) are comprehensively studied in detail in this book with a comparative perspective. Constructive recommendations have been made to the Chinese regulation of the new Internet payment services both in the general principles level and in specific regulatory approaches level, by taking into account experience that China may learn from the EU/UK regulatory experience, the English regulatory theories and Chinas own regulatory practice. Meanwhile, the author has highlighted key experience where the EU/UK may learn from Chinas experience in the development of new Internet payment services.

　　Acknowledgement:

　　The author Li Wen would like to express his heartfelt, deepest and most sincere appreciations, gratitude and love to all his family members for their great supports during the authors academic life. Equally important, no words can precisely and adequately express Li Wens thanksgiving and appreciations to China University of Political Science and Law (CUPL). CUPL has provided the author an excellent academic environment to think, to teach, to do research and to write. Warmest regards are also extended to students at China University of Political Science and Law. The author can always learned a lot from the students. The writing of this book is a self-discovery journey. Thank you all.