The dissertation is devoted to a comprehensive economic-law study of the payment services market in the context of digitalisation. The research develops new theoretical provisions concerning the legal qualification of a payment service, the structure of digital payment legal relations, the composition of participants in such relations, the legal regime of digital payment instruments, the functioning of open banking, the digital circulation of value, and the protection of users of payment services. An approach to the legal qualification of a payment service in the context of digitalisation as a complex digital payment legal relation is substantiated. It is demonstrated that a payment service cannot be viewed solely as a banking operation, a technical transfer of funds, or a contractual obligation between the user and the payment service provider. Its contemporary legal content is formed through the combination of property-settlement, information-access, and organisational-regulatory components. The property-settlement component covers the movement of funds or electronic value and the property consequences of improper execution of a payment transaction. The information-access component is connected with user consent, authentication, access to a payment account, payment data, and the formation of the user’s payment-related expression of will. The organisational-regulatory component covers the special legal regime governing the activities of payment service providers, the functioning of payment infrastructure, financial monitoring, supervision, the security of information systems, and the distribution of legal liability among the participants in a payment transaction.
It is proved that the structure of digital payment legal relations is not limited to the classical elements of subject, object, and content. In the digital environment, legal means of initiating, confirming, and executing a payment transaction, as well as special requirements for payment infrastructure, acquire independent legal significance. Such means include the payment instrument, user consent, authentication, payment instruction, access to the payment account through the interaction of information systems of payment service providers, and other mechanisms through which the user’s payment-related expression of will is formed, confirmed, and implemented. The legal regime of payment infrastructure covers operational continuity, financial monitoring, supervision, information system security requirements, and the liability of professional participants in the payment process.
An approach has been developed to determining the legal status of a participant in digital payment legal relations according to the criterion of control over the source of payment risk. Unlike an approach under which the legal regime of a participant is determined primarily by its formal licensing status or type of authorisation, the proposed approach proceeds from the participant’s actual role in the payment process and its real ability to identify, prevent, stop, or eliminate the relevant payment risk. Such a role may manifest itself in control over the digital interface, authentication, access to the payment account, processing of payment data, the technological infrastructure of the transaction, or the continuity of the payment process. On this basis, the composition of participants in digital payment legal relations has been clarified with regard to financial, issuance-related, information-access, technological-infrastructural, public-regulatory, and user-related elements. Special attention is paid to open banking. It is demonstrated that, within open banking, the interconnection between user consent, payment data, and access to the payment account acquires particular legal significance. User consent in open banking cannot be reduced to a general civil-law expression of will, since it simultaneously determines the lawfulness of access to the account, the scope of payment data that may be transferred to a third-party payment service provider, and the possibility of initiating a payment transaction or providing account information. The dissertation substantiates the specific features of the legal status of third-party payment service providers, whose participation in payment legal relations is based not on proprietary control over funds, but on lawful access to the account, the processing of payment data, and influence on the initiation of a transaction. In this context, the legal status of a bank as an account-servicing payment service provider has been clarified, since in open banking legal relations it performs not only contractual duties, but also special infrastructural obligations.
