Abstract
The development of electronic payment instruments and their online availability constitute important parts of the development of the EU payments market. Individual states adopt different approaches towards interpretation (legal aspects) and types of electronic payment instruments. To encourage sustainable payment services, minimize possible threats, and create favourable conditions for the development of new payment instruments, legislators adopt general legal acts stipulating the legal status of electronic payment instruments. However, the actual interpretation of payment instruments is often narrowed in legal practice, and does not cover payment instruments newly introduced to the market. A new insight into electronic payment instruments corresponding to the latest trends in the market is important in criminal law as well, because crimes related to the use of a payment instrument are common and difficult to investigate. In view of recent changes in payment services (the new Payment Services Directive in 2019), the norms of criminal law stipulating liability for the illegal disposal of electronic payment instruments must reflect circumstances predetermined by today’s technological developments. In terms of criminal law, a technologically neutral conception of the payment instrument is necessary, to include a wider range of payment instruments that differ considerably from conventional personalized payment cards. The aim of this article is, therefore, to demonstrate that the current regulation of the Criminal Code of Lithuania lags behind the development of payment instruments, and in order to avoid excessive criminalization it is proposed to narrow the application of Article 214 of the Lithuanian Criminal Code.
Highlights
The first attempt to define an electronic payment instrument was made in 1988 by European Commission Recommendation 88/590/EEC concerning payment systems, and in particular the relationship between cardholder and card issuer
To encourage sustainable payment services, minimize possible threats, and create favourable conditions for the development of new payment instruments, legislators adopt general legal acts stipulating the legal status of electronic payment instruments
A new insight into electronic payment instruments corresponding to the latest trends in the market is important in criminal law as well, because crimes related to the use of a payment instrument are common and difficult to investigate
Summary
The first attempt to define an electronic payment instrument was made in 1988 by European Commission Recommendation 88/590/EEC concerning payment systems, and in particular the relationship between cardholder and card issuer. Personalized devices mentioned in the definition of payment instruments are closely linked to personalized safety features, which are understood as data to be used for user authentication and agreed to by the payment service provider and the user These features may include a wide range of forms, such as PIN codes, biometric data, or variable algorithm generated values. User trust in measures granting confidentiality and in the integrity of personalized safety features is essential Such measures typically include encryption systems based on the use of personal devices, such as card readers or mobile phones, that may be used by the service provider to send encryption data, e.g. text messages or e-mail messages (PSD2 preamble). The authors use qualitative research methods, such as the method of textual analysis and the analysis of case law in the field of criminal cases
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