For a long time after the Second World War, automated payments, and then computerized, were just an optimization of banking services, intended for knowledgeable professionals in the field. The end of the second millennium of our times also brought with it the generalization of the computerization of payments, with the immediate consequence of opening to the general public an instantly accessible global market. Thus, initially, the regulatory problems were mainly internal, at the banking level, but later became a global phenomenon, following the access to computerized payment services of other users, companies or individuals - final consumers. The equation generated by this economic phenomenon, complicated by the continuous technological development, is, from a legislative point of view, in permanent solution, the technological changes being hardly followed by the legal norms.
The activity of regulating the activities of computerized payments, in an early period of technologicalization of the financial economy, respectively, of computer or electronic payments, today, is extremely discussed, both due to the specific terminology and, especially, to the different approaches. or European. The American system, more liberal and based on the principle of technological neutrality, allows a sufficient level of self-regulation to encourage innovation and improvement of the technology used, while European legislation is much stricter in terms of the actors' ability to set their own limits. although it supports the application of the same principle. By way of example, we can refer here to the way of identifying the person in the electronic environment, necessary in the technology of electronic signature: in the case of Europeans it is reduced only to the use of cryptographic codes, while on the American continent, biometric identification is allowed, at least as safe.
The Romanian legislation in the field is created by taking over the existing regulations at the level of the European Union, lacking a necessary correlation both with the general legal norms and with the norms specific to some fields such as the fiscal or criminal one. This phenomenon is also due to the non-unitary treatment at the level of legal doctrine of the legal aspects of electronic payments, the existence of different meanings for the same terms used in legal context and, last but not least, the shyness shown by lawyers towards the approach to information technology.
The general objective of the paper was established starting from these legal aspects, so that it can answer in the most correct way the question "what are electronic payments and how should they be regulated?".
The specific objectives that lead us to achieve the general objective have been identified as follows:
1) Payment and payment instruments:
- defining the electronic environment as a premise of the existence of electronic payments;
- establishing the general legal framework of payment, defining this notion as a means of settling obligations, defining the electronic transfer of funds and the principle of freedom of payment;
- classification of means and instruments of payment and their analysis related to the electronic environment;
2) Infrastructure and payment systems:
- analyzing the signature and the document made electronically, technical elements without which electronic payments could not be made;
- analyzing the payment systems used domestically and internationally, as well as the relations between them and their users, providers of electronic payment services or beneficiaries;
3) Legal liability in the matter of electronic payments:
- identifying the mechanisms of legal liability of the actors in the field of electronic payment services, from a triple perspective: civil, administrative and criminal.
The concept of electronic payments is relatively new, both worldwide, where it has been defined in the last fifty years, and especially in Romania, where it appeared twelve years ago. The approach is necessary to be multidisciplinary, starting from an economic and technical reality that requires the research of various bibliographic sources, both domestic and especially from countries with richer experience in the field. The multidisciplinarity of the concept of electronic payments implies not only the deepening of the matter of civil obligations, but also the consultation of the specific doctrine from the banking, informatics, criminal, administrative or fiscal law. The absence of borders in the case of the electronic environment raises issues specific to international law, both public and private. On the other hand, all documentation must take into account domestic legislation, even if it is the implementation of European or international regulations in the field, to identify the errors inherent in establishing simple and clear rules in a difficult field. If we can find out relatively easily what electronic payments are, it is much harder for us to find out how they should be regulated, given all the premises of the given problem. We consider, however, that the application, as a cornerstone, of the principle of technological neutrality in our research approach, will lead us to a correct and expected result, that of being able to make certain proposals of law ferenda, to try to clarify the current regulation.