Fongibilité de la monnaie

Pages: 55 (13565 mots) Publié le: 23 mars 2011
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PEOPLE
MARIE CURIE ACTIONS

Intra-European Fellowships (IEF)
Call: FP7-PEOPLE-2010-IEF

PART B

“LMPLHT”

B1 Scientific and technological quality 2
B2 Training 11
B3 Researcher 12
B4 Implementation 20
B5 Impact 23

B1 Scientific and technological quality

B1 – 1 Scientific and technological Quality, including any interdisciplinary and multidisciplinary aspects ofthe proposal

Law of modern payment means in the light of the history of the concept of legal tender

Paper and metal monies have drawbacks that have made alternative payment systems always more valuable for the exchange of money in payment. Modern payment systems emerged during the nineteen-sixties when American banks build nationwide schemes to distribute payment cards[1] in order toovercome geographical and legal impediments in local banking activities. The principles of their functioning do not differ much from older payment methods such as cheques: they rely on a four party scheme, with a payer, a payee, the payer’s and the beneficiary’s banks. The sole novelty was that these systems were (and still are) organised though a privately owned network.

The originalproject started in 2003 with a “doctorat en droit” (a French Phd), analysing modern payment systems from a global antitrust law perspective. My assumption was that if the “exchange of money” qualified for a universal trade under the name of “payment services[2]” and that antitrust law was the paradigm of market regulation, then payments systems should see their activity legally regulated by antitrust onthe same basis around the world. Eased by the narrow aspect of the subject matter, I was able to gather and study all European antitrust case law on payment systems and then conduct an extensive antitrust comparative law analysis with decisions from competition authorities, State departments and tribunals chosen from selected countries.

This legal analysis showed that the antitrustsearch for a single legal rule applicable to payment systems (mainly payment cards) had not succeeded. Despite similar markets and antitrust legislation, the exchange of money by modern payment systems seemed to lack a common standard of regulation (I).

The analysis of the antitrust cases for payment cards also revealed that the relevant market, within which Competition Authorities assess agiven competition issue, did not include Cash. Therefore, when resuming my research in 2008, I investigated the rules that provided for the exchange of Cash. Such provisions appear in public monetary law through the “legal tender” rules which apply exclusively to coins and banknotes issued by States. More over, the legal concept does not solely belong to monetary law, “legal tender” provisions canbe tracked down in various branches of law. Such findings led me to carry out a positive law transdisciplinary[3] analysis of the concept of legal tender in European Union and French legislation. The purpose is to describe this concept’s degree of “juridicity” (how and by what means does the concept of legal tender irradiate a national currency?) and to show that legal tender, the law of theexchange of money, has unexpected hidden effects in legislation (II).

These dual regimes (antitrust law regulation and “legal tender” provisions in private and public law) of the regulation of the exchange of money seem to ignore one each other and at the same time reflect the ongoing debate about what belongs to the “public” and “private”. Such movements require a historical perspective to showtheir variations.
My preliminary research on the history of the concept of legal tender (through my positive law analysis) shows that no unified legal theory has been achieved in contemporary law. The concept of “legal tender” seems to have come to birth in between the 18th and 19th century. It has evolved from earlier legal provisions (“corso della moneta legale” for instance) that were...
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