Development of the information technologies as well as growth of number and qualification of individuals abusing their knowledge and skills in the sphere of using payment systems, affects the ever-increasing amount of fraud, associated with the illegal use of payment cards (illegal duplication of payment cards, illegal withdrawals). It encourages lawmakers to take actions to protect the payment system.
The definition of the «national payment system» and the definition of the «operator of the payment system» are specified in Articles 3 and 4 of the Federal Law № 161 "On the National Payment System" (hereinafter the "FL - 161"): "the national payment system – is a set of operators which transfer funds (including operators of electronic money), bank payment agents (subagents), paying agent, the federal postal service in case of rendering of the services under the Russian legislation, operators of payment systems, payment infrastructure services operators (the subjects of the national payment system)", «operator of the funds transfer - an organization which has the right to transfer funds under the legislation of the Russian Federation».
Nowadays, the burden of proof of the withdrawal of funds without client’s will from his account, lies on the owner of the payment card, that is confirmed by the case law, for instance by the cassational rulling of the St. Petersburg City Court dated June 23, 2011 № 33-9455/2011, rulling of the Moscow Regional Court dated April 12, 2011 № 33-6251. However on January 1 2014 the situation will change dramatically due to the fact that certain provisions of the Federal Law № 161 "On the national payment system" come into force. Part 12 of the Article 9 FL - 161, which is coming into force on January 1, 2014, obligates the operator of the payment system, which can be used to transfer funds, to compensate the amount of the transaction to a client, carried out without the client's consent.
Although, according to the "Answers to the questions regarding the application of certain provisions of the Federal Law dated June 27, 2011 N 161-FL «On the National Payment System" (hereinafter «Information from the Central Bank») such obligation is stated as absolute, but as per part 14 of Article 9 FL-161, the customer must notify the operator no later than the day following the receipt of information from the bank on making the payment for this obligation to arise. If the operator does not fulfill its obligation, set by part 4 of Article 9 of Federal Law № 161, the refund is peremptory.
Provisions of the Federal Law on "National Payment System" that come into force will significantly reduce the time for return of the stolen funds from the clients’ accounts (30 days for operations in Russia and 60 days for the cross-border transfers).
Operators of the payment systems have already found provisions that come into force on January 1, 2014 to be excessive. In their question to the Central Bank, that has been published, they requested a cancellation of such a tough measure as the return of funds withdrawn without client’s consent. Such a request is motivated by fear to face abuse from the clients.
However, these changes are considered to be the continuation of legislative implementation of the doctrine of the weaker party, worked out by the Constitutional Court of the Russian Federation in its Resolution dated 23.02.1999 № 4-P, where a constitutional requirement to protect civilians, as the economically weaker party in the legal relationship with the credit institution has been revealed. On the other hand, the benefit for the operators of the payments systems should be emphasized. Now holders of the bank cards and holders of other means of payment will be able to trust it even more. That will lead to its expansion among both customers and the sphere of services provided to them.
On the other hand, commented changes will significantly increase the interest of the operators to ensure the highest possible level of safety of using payments systems. Thus, credit organizations will implement authentication methods that allow more accurate identification of the owner of the card before the fund transfer in order to minimize operators’ risks.
Also, operators will be able to refuse to enter into contracts for services, which is a way to ensure the prevention of abuse.
It is worth noticing that in the "answers to the questions concerning the application of certain rules of the Federal Law dated June 27, 2011 N 161-FL "On the national payment system", the Central Bank said that the possibility of implementation of changes to the Article 9 of the FL-161 in order to reduce the level of responsibility of the Banks may be considered only after the analysis of the results of the implementation of the discussed provision.
It is worth noticing that in terms of the operator's liability for the security of the payment system, the legislative strengthening of the liability corresponds to the existing court practice of the recent years (including practice mentioned above). In addition, the consolidation of the liability of operators corresponds to the global practice of regulation of the market of the payment services.
Due to the fact that these measures would increase the level of security, the prevalence of using payment cards will increase, which would favorably affect the number of agents that accept electronic payment methods