In the Spring Festival of the Year of the Sheep, shaking red envelopes and grabbing red envelopes are undoubtedly the most attractive "programs". Both sending and receiving are busy. The hot spring of electronic envelopes is the result of a win-win result for users, merchants, and Internet payment platforms. After that, the legal issues behind it are also thought-provoking.
Hundreds of millions of red packets are "sticky" users
For most individual users, grabbing a red envelope online with friends is a game activity that conveys blessings and sharing joy. For enterprise users, low-cost marketing can be promoted by distributing discovery red envelopes and vouchers. For many Internet companies and the third-party payment platforms behind them, the amount of red packets they distribute is staggering. Tencent claims to distribute 6.5 billion red envelopes, including the WeChat cash red envelope with a total amount of 500 million yuan during the Spring Festival Evening broadcast and the red envelope for card coupons exceeding 3 billion yuan; and 3 billion red envelopes for mobile QQ; Red envelopes. Behind such a generous investment in cost, its purpose is to appear to be "intoxicated by alcoholism."
As we all know, mobile payment is a hotly contested place for Internet companies in the future. However, many consumers often target users of third-party payment platforms that are not sticky. This can be used to enhance the user experience through a wide range of user groups such as e-blankets. Cultivating users' habits and then expanding the market share in the field of mobile payment clearly has an advantage over the traditional advertising investment with equivalent value.
The legal relationship behind the electronic envelope
To explore the legal issues of electronic red envelopes, we must first clarify the legal relationship. Take Wechat's "scratch" red envelope as an example. Suppose A user sends a red packet to a group of friends within the group. First, the amount is transferred from A's bank account to Tencent's third-party payment platform, TenPay, as a backup payment when a friend B After grabbing the red envelope, Tenpay will transfer the red envelope money into the virtual account of Tenpay in accordance with the relevant instructions. At this time, Tenpay does not actually transfer the money directly into the bank account of the B user. It is stored in the special account of Tenpay in the form of a reserve fund.
During this period, between the user and the third-party payment platform, there are actually two types of contractual relationships between storage and commissioning. That is, the user delivers the red envelope payment to a third-party payment platform, and the two parties will keep the redemption money in the form of a backup payment. The relationship between the custody contract under Article 365 of the Contract Law of China is formed; this part of the funds is then precipitated by third-party platforms due to delayed delivery. When the third-party payment platform issues a red envelope to friends in the group according to the payment instructions of the red packet game rules, according to Article 396 of the Contract Law, the two parties form a contract relationship. Therefore, the rights and obligations of both users and third-party payment platforms are subject to the restrictions and adjustments of relevant laws and regulations of the Contract Law.
Who will deposit funds and interest
The so-called deposit funds, the central bank's definition of this is: the payment institutions held by the customer's cash deposits pre-existing or retained, as well as payment agencies to collect or pay money. In short, deposit funds are generated due to the time difference between transactions and actual payments.
In practice, the amount of a single red packet received by the user is often very small, so the average user will not immediately perform transactions and cash withdrawals because of the “block eight hair†package, and the red packet will be deposited as a reserve fund in a specific account of the third-party payment platform. . When the number of users is large enough, the amount of money deposited will also generate huge sums of money, resulting in two legal issues:
The first is how to monitor the problem of precipitation funds. From the perspective of contract law, a third-party payment platform acts as a custodian and temporarily deposits the deposit funds on its behalf and does not obtain ownership of the funds. From the perspective of financial laws and regulations, in accordance with the relevant regulations of the "Measures for the Management of Payment Services for Non-financial Institutions" and the "Measures for Depository Provisions for Clients' Payment of Payment Institutions" promulgated by the People's Bank of China, third-party payment agencies must set up separate deposits for reserve funds. Accounts shall not be used to misappropriate, occupy, or borrow customers' reserves. Therefore, the ownership of reserve funds is clearly defined by the law. However, in the eyes of the industry, the development of some third-party payment institutions is not standardized, and the huge amount of transactions also makes it difficult for the market and industry supervision.
The second is the issue of asphyxiation. Before the Central Bank’s “Measures for the depository of client depository of payment institutions (Exposure Draft)†stipulated: “The payment institution may transfer the interest balance of the reserve bank account after accruing the risk reserve to its own fund account. "The risk reserve for the payment institution shall not be less than 10% of the interest income from the provision bank account." This means that payment institutions can get up to 90% of these interest rates. However, in the “Measures†formally promulgated on June 7, 2013, this article was deleted. Therefore, the existing laws and regulations in China do not specify the suffocation of the deposited funds.
According to Article 377 of the Contract Law of China, when the custodian has the obligation to return the stored goods, the cessation of the cessation of the storage period shall be returned. Therefore, from the analysis of the principle of civil law, the relevant interest should be owned by the user.
However, in terms of actual operation, there are certain obstacles for consumers to enjoy interest income. If the third-party payment agencies are allowed to allocate and return the interest for each consumer's individual consumption amount, the operating cost may even exceed the interest income. Therefore, the service agreement of the third-party payment platform usually excludes the consumer's right to demand payment of this portion of interest.
Take the Alipay Service Agreement as an example. Its rules of use state: “You do not have any rights to any income generated from all collection and payment items. The company has the ownership of any income generated from all the collection and payment items.†It is agreed that the service agreement is a prerequisite for users to use their payment services. As a format clause, users cannot raise objections to this, and a large amount of funds for accrual payments will also accumulate considerable figures. There is a big doubt that this agreement is fair and reasonable.
Undoubtedly, as an entertainment game supported by emerging Internet technologies, electronic envelopes have been very successful as a commercial promotion activity. However, the "blank" and security risks of some rules have begun to emerge. It can be imagined that with the rapid development of mobile payment services in the future, the problems faced by internet finance will inevitably bring about more legal thinking.