第三方支付机构客户备付金性质及风险研究

The Nature and Risks of Customer Provisions of the Third-party Payment Institutions

对于第三方支付机构客户备付金的性质,学界存在争议,存在"保管"和"托付"不同主张。目前我国法律已经明确客户备付金是支付机构为客户保管的财产,资金所有权属于客户。但是实践中客户备付金均以支付机构名义存放于商业银行,支付机构与备付金存管银行之间的法律关系还没有完全明确。之所以存在性质界定模糊的问题,根本原因在于我国的备付金存管制度尚不完善,特别是没有要求存管银行建立二级账户,导致资金运行不透明,权属关系界定不清;也造成资金可能被支付机构挪用从而出现无法兑付的风险。在这一点上,纸质时代曾经出现的兑付危机可以为电子化时代的风险应对提供启发。如果支付机构不挪用客户备付金,兑付风险主要来自备付金存管银行。而一旦备付金存管银行破产,按照目前我国的存款保险制度,支付机构的客户难以得到存款保险保障,未来需要改进。可以借鉴美国存款延伸保险制度,通过备付金账户独立化和二级账户可识别化,将备付金账户存款保险延伸至备付金真正所有人,即支付机构客户,从而有效保障客户权益。

Regarding the nature of the third party payment institutions' customer provisions, researchers have different views. Some take the payment institutions as the custodian of the provisions, while others take the provisions as escrows. China's regulations confirm that the provisions are in custody of the payment institution, and the customer has the ownership of the provisions. However, the provisions are in practice deposited in commercial banks in the name of the third party payment institution. It remains undefined about the relationship between the payment institution and the commercial bank. The main reason for that controversy is that the current regulations on customer provisions contain defects in not requiring banks to set a second-level account for each customer, causing opaqueness in money movement and uncertainty in relationship between the payment institution and the bank. In addition, there are risks that the payment institution could embezzle the money, which in turn would cause the inability to pay customers when required. The payment crises in paper-payment era provide inspirations for the electronic-payment era. If there is no embezzlement, the main risk is from the bank. Once the bank goes bankruptcy, under our current deposit insurance system, the customers could not be effectively protected. We should learn from the pass-through deposit insurance arrangement in the United States, which keeps the account of provisions independent and identifiable. Therefore, the insurance can reach directly to the actual owner of the provisions, i.e., customers of payment institutions, and then provide effective protection to the customers.