A Study On Legal Issue Of Loss Sharing In Micro-electronic Payment

With the development of computerizing financial information services, traditional cash and bill payment would have been substituted by electronic payment gradually. Micro-electronic payment, as an essential component of the electronic payment, which serves as general consumer, a new method of payment and settlement. Due to. it has the superiority of convenience and efficiency, micro-electronic payment, especially, the bank card payment is about to become the most significant mean to accept and conduct payment and settlement in our life.Considering the view of market regulation, the purpose of the Micro-electronic payment legal system is to protect the cardholder's interests and rights. At present, with regard to protect the cardholder's rights, there are two protection modes in the Micro-electronic payment. One is represented by the United States to draft a special law to protect cardholders. Another is represented by the United Kingdom, rely on the business practices, the English Banker Association publicized "Code of Banking Practice", which regulating unfair contract items, as well as safeguarding the cardholder's interest has played a good model role.With the Micro-electronic payment industry to flourish in our country, also, great opportunities would be hidden behind a huge crisis. Among them, the policy of ambiguity, legal gaps, lack of supervision, business un-standardization would become the biggest stumbling block to hinder its rapid development .At present, there are no specific electronic payment laws and regulations, the relevant provisions are scattered to various departments' regulations. But, these department regulations don't pay too much attention to the cardholder's interests, their eyes were focused on how to manage the card-issuing bank, as well as how to safeguard the card-issuing bank's rights, also, they are not provide for the issue of the loss sharing of the electronic payment specifically. In practice, the issue of loss sharing in electronic payment is provided for the card-issuing bank's card charter or the provisions of the contract recipients. Although, these provisions have regulated the loss sharing rules which the losses may be caused by the fraudulent payment, payment instructions error and the implementation flaws of the payment instructions in the course of electronic payment, but, whether it is password rule, report loss rule, or report loss +24 hour rule, almost all of rules are tend to bear the possible loss by cardholders.For the validity of these loss sharing rules, whether it is from the perspective of contract law, or from an economic analysis of cost-benefit, it would be find that the current loss sharing rules are inefficiency in our country. Therefore, in order to protect the cardholder's interests, when it come to the specific loss sharing, in addition to adopt the traditional principles of liability, also, we should consider the parties capacity of bearing loss, spreading loss, reducing loss and the loss of implementation costs, after balancing the interests between cardholders and banks and so on financial institutions, it hope that we can allocate various payment losses between the parties reasonably.