Juristic report/analysis of the electronic payment system activity in Ukraine within the framework of existing legislation
Due to the need to carry out actions aimed at maintenance of electronic payments between participants in the payment system Node and the operation of the cryptocurrency service under the current legislation of Ukraine, it was conducted a comprehensive legal analysis and was prepared a report, which examined the activities of electronic payment systems in Ukraine. This report, first of all, indicates the direction of further work on the legal team Node on the payment system activity ensuring.
Any payment system in Ukraine is obliged to work within the existing legal framework. Regulatory policy and oversight of payment systems activity in Ukraine is implementing the National Bank of Ukraine, guided by the current legislation, in particular the Law of Ukraine "On the National Bank of Ukraine", "On Banks and Banking Activities" and others.
Laws and regulatory legal acts governing the payment system work in Ukraine:
Law of Ukraine "On Payment Systems and funds transferring in Ukraine" as amended on 19.04.2014;
Regulation "On Electronic Money in Ukraine" as amended on 12.11.2014;
Disposition of the National Bank Board of Ukraine № 43 dated 02.04.2014 "On regulation approval of the procedure for payment systems registration, payment system participants and services payment infrastructure operators ";
Civil Code of Ukraine.
What is needed to work within the legislation
For implementation of the payment system activity in the legal field of Ukraine, it is needed:
1. To register LLC (respectively, to approve the charter, regulations, etc.);
2. To open CEAT 64.19 (other monetary intermediation types) and CEAT 64.99 - as the main type of activity (providing other financial services (except insurance and pension funding);
3. To agree rules of the payment system work with the NBU.
The most difficult step to date - the agreeing of regulations with the NBU.
According to the analysis of the current legislation, it is necessary to submit to the NBU the following documents for license issuance consideration:
1. Petition;
2. A notarized copy of the charter;
3. A notarized copy of the registration certificate of the LLC;
4. Notarized copy of the internal regulation on the funds transfer;
5. The reporting for the last financial year;
6. A document confirming the payment for the license issuing.
Reporting for the last financial year must contain the following information:
1. Money means transfers report;
2. Own capital report;
3. Financial results report.
In addition, the information provided in the reporting for the last financial year shall be confirmed by the carried out audit.
The internal regulation of the funds transfer should contain the following items:
1. The procedure and conditions for the funds transfer realization;
2. The procedure for recognition of individuals who are senders and receivers of money funds;
3. The procedure for ensuring the recommendations implementation methods FATF (the recommendations of the International Group for the development of financial measures to combat money funds laundering can be found here). For details, see Disposition;
4. Technology of the execution and processing of documents;
5. Procedure for accounting implementation;
6. Description of the information security system, which is used in the implementation of funds transfers;
7. Procedures for storage and storage times of financial transactions information;
8. Procedure for refund, in case they cannot be credited to the electronic invoice /cannot be transferred to the recipient;
9. The procedure of internal control implementation over funds transfers.
It is worth noting that according to p.5 of the Regulation "On the procedure for payment systems registration, payment system participants and services payment infrastructure operators", all of the above documents to obtain a license must be submitted only in the Ukrainian language. In addition, the NBU requires that the statements mentioned in these documents do not contain typographical errors, inaccuracies, corrections.
Each page must be confirmed by the seal and the LLC head signature, bounded, numbered. All documents must be submitted at the same time. More detailed information about the actions needed to agree the work of the payment system is contained in the Regulations.
Term of consideration of the petition for a license issuance on transferring funds to nonbank institution makes 60 calendar days. During this period, the NBU decide and notify it in writing form to the non-banking financial institution address. In case of cancellation, there must be given grounds, under the current legislation.
Consideration of the optimal path work of the electronic payment service Node in Ukraine
At the moment, all nonbank payment systems in Ukraine (including cryptocurrency services of type BitCoin) can be divided into two types:
1. Services that operate within the legal framework of Ukraine adhering to the dispositions of the Law of Ukraine "On Payment Systems and funds transferring in Ukraine" and the Regulation "On Electronic Money in Ukraine", having the NBU license and which agreeing the working rules with the National Bank of Ukraine (demonstrative example - the payment system GlobalMoney)
2. Services, formally leading the activity outside the legal field of Ukraine, central offices of which are located outside the state of Ukraine (demonstrative examples - WebMoney, BitCoin).
To date, payment systems, licensed and agreeing working rules with the NBU in Ukraine there are 24 – see the table here.
The question arises: on what basis is not suspended the activity of the payment services group, which formally carry out their activity outside the legal field of Ukraine? Moreover, what gives to the company a license issuance and working rules agreeing with the NBU?
To answer this question, it is necessary to understand the following:
Often, the payment services of the second type, formally does not produce selling/buying/ transferring of electronic money funds within the meaning of the Ukrainian legislation. But namely Article 15 of the Law of Ukraine "On Payment Systems and funds transferring in Ukraine", where it is defined the concept of electronic money. (e-money - value unit, that is stored on an electronic device, is accepted as a payment method by the other persons, than the person who produces it, and represents a monetary obligation of this person, which is performed in cash or non-cash form).
Thus, these payments funds do not sell electronic money, but the RIGHTS OF CLAIM (which, for example, at WebMoney, for convenience, are named as "title signs").
In case of simplifying and not enough delving into the intricate system of operation of such payment services, we explain – rights of claim (i.e. "title signs") are equal to the value of different currencies. For example, 1 title sign WMU equals to 1 hryvnia. Accordingly, when you output the title sign from your wallet in the system, take place the rights of claims assignment. You contract the rights of claims assignment, on which is fixed your digital signature. This means that the guarantor (at WebMoney in Ukraine there is "Ukrainian Guarantee Agency") provides you the right to "require" from them 1 hryvnia for 1 title sign. In addition, for this "scheme" working, you must contract with the bank, which, in turn, will ensure the issuance of real money for the right of claim to the payment service customers (at WebMoney there is "Ukrainian Professional Bank").
On the one hand, this work scheme is more comfortable and almost all major payment services are working in accordance with it (many of them do not register their activities in Ukraine, preferring to open offices in free economic zones and signing the guarantee agreement with foreign banks).
On the other hand, for the average user, there are certain risks arising from the legal framework of Ukraine. For example, you can make acquainted with several recent court decisions in the registry of court decisions, where also featured WebMoney (to make acquainted with the decisions it is possible here, here and here). The essence is that, in case of litigation of users of such services with each other (in the case of repayment debt, for example, or refunds for goods) the court will rely on the fact that such services DO NOT REPRESENT payment systems. In addition, they are not subject of regulations memory of the Law of Ukraine "On payment systems and money transfers in Ukraine", as they did not agreed upon rules for working with the NBU. Moreover, respectively, it is practically impossible to reclaim debts to users of such systems. This was repeatedly warned in the letters of the NBU.
Furthermore, the NBU was trying to bring in 2013 to account WebMoney for that they did not agreed upon the rules of their work with them. That, however, the National Bank failed, because WebMoney provided the EXPERT opinion of the Institute of State and Law named after B.I.Koretsky, that it doesn’t represent a payment system in the interpretation of existing legislation and, accordingly, has the right not to agree with the working rules of the NBU. In the same year, the Economic Court of Kiev region confirmed the rightness of WebMoney and made appropriate judgment in its favor.
Based on this single precedent in judicial practice, as well as analyzing the current legislation, it can be concluded, that non-agreeing of working rules with the NBU in case, if there are transferred rights of claim (and there are not implementing money transfers of electronic money within the meaning of Art. 15 of the Law), in the case of a guarantor and presence of an agreement of ensuring benefits to customers with one of the banks, is acceptable and is not contrary to the legislation. However, for customers of such services will be some risks in case of necessity for recovery of debt or other legal proceedings relating to the payment system of such type.
Also, in case of central office opening outside of Ukraine, due to imperfect legislation ground and, in particular, the regulatory legal acts in the domain of regulation work of electronic payment systems, e-money and calculations, working under the Civil Code in terms of the rights of claims assignment, it is possible to argued, that the NBU will not have the legal levers to influence such payment systems, but only will limit with "recommendations" and "warnings" that the full responsibility and risk of the use of such systems (such as BitCoin) takes directly the user.
Conclusion
Electronic payment service «Node», organizing its work on the juridical scheme, similar to the work schemes of BitCoin or WebMoney in Ukraine (i.e., without agreeing with the working rules of the NBU in accordance with the Decision of the NBU Board №43 dated 02.04.2014), will be under the current legislation.
This conclusion is based on the consideration of the legal nuances of the payment services work in Ukraine, in particular GlobalMoney, WebMoney, BitCoin, E-Pay and others.
Recommendations
● To prepare a submission letter on behalf of the head of LLC "Node" to the National Bank of Ukraine with a request of further clarify the procedure for agreeing of the work rules of the electronic payment service in Ukraine and obtaining a license;
● In addition, in view of the above explanations and analysis, to carry out juridical work in order to determine the optimum juridical form of work within Ukraine.
Head of legal department _________________
