Transfer and Exchange of Company Points and the Funds Transfer Business under the Japanese Payment Services Act

In web services and apps, there are cases where users are awarded “points”.

• Cases where users simply exchange cash for points to use on the service or app
• Cases where users are made to purchase goods, services, additional items, etc. with these points
• Cases where a user can give points to another user, a so-called “tipping” system
• Cases where points are moved instead of money being exchanged between users, such as in a “splitting the bill” service

These are just a few examples.

These point systems, which use “points” that can be easily moved on the service or app instead of “money”, simplify economic activities that were traditionally done with “money”. However, from a legal perspective, there are certain precautions and regulations in place when a company creates these “points” and allows users to use them.

The issue that particularly arises with the exchange or transfer of points between users is the Japanese Funds Settlement Act. This article will explain how such actions are treated under the Japanese Funds Settlement Act and what regulations are in place.

Company-Issued Points and “Foreign Exchange Transactions”

There are cases where the act of users exchanging and transferring points issued by a company is treated as a “foreign exchange transaction”. According to legal precedents, a foreign exchange transaction is defined as:

Accepting a request from a customer to use a system that allows for the transfer of funds between distant parties without the direct transportation of cash, or carrying out such a request.

Supreme Court Decision, March 12, 2001 (Heisei 13)

This is the definition.

• Without transporting cash
• A system that moves funds

These are the elements of a foreign exchange transaction. Therefore, when a company has a user purchase its own issued points and send them to another user, if it is said that “funds were moved through the medium of company-issued points”, it falls under the category of a “foreign exchange transaction”.

Regulations for “Foreign Exchange Trading”

The act of conducting foreign exchange trading (specifically those under 1 million yen) as a business is defined as a “Funds Transfer Business” under the Japanese Funds Settlement Act. The law imposes strict regulations on such funds transfer businesses.

Primarily, foreign exchange trading is an activity that should be conducted by banks. From a user’s perspective, banks provide a sense of security, as money deposited in a bank is considered almost equivalent to cash. The bankruptcy of a bank would be a more serious issue for users (consumers) than the bankruptcy of a single company. In simple terms, the law believes that if you become an entity where depositing money is considered safe, you should comply with various regulations imposed by the law. This concept is a very important issue when considering “self-issued points”.

Foreign exchange trading is:

1. Primarily a banking business, but
2. If it’s under 1 million yen, it’s a “Funds Transfer Business”, which, while not as heavily regulated as banking, can only be conducted under strict regulations

This is the established principle.

In order to conduct a funds transfer business, it is necessary to register as a funds transfer service provider. However, to conduct a funds transfer business after receiving this registration, you must:

• Have a financial foundation (possess a financial foundation deemed necessary to properly and reliably conduct a funds transfer business)
• Have an established operational system (have a system in place to properly and reliably conduct a funds transfer business)
• Preserve an amount equal to or greater than 100% of the funds in transit as performance guarantee money

There are heavy regulations like these. Honestly, it seems very difficult for startups in particular to establish and operate these systems. As of June 30, 2019 (Heisei 31), there are only 64 registered funds transfer service providers in Japan.

Designing Self-Issued Points That Do Not Fall Under the Japanese Funds Transfer Service

Therefore, fundamentally, we need to consider “how to design the exchange and transfer of points so that they do not fall under the Japanese Funds Transfer Service.”

Making Cash Purchases Impossible

The simplest solution is to make your self-issued points non-purchasable and non-cashable with real money. In other words, even though we refer to them as self-issued points, there are two types:

• Points given as a reward instead of cash when a user performs a certain action
• Points that users purchase with cash

If the points cannot be purchased with cash, then moving or exchanging these points does not constitute a “transfer of funds”, and there is no room for them to fall under foreign exchange transactions. For example:

• Web services or smartphone apps that encourage users to download, install, and use their app, and award “points” when the user performs these actions
• Web services such as e-commerce sites that award “points” that can be used for discounts on future purchases when users buy products with cash

In these cases, there is no moment when “users purchase points with cash”. If points are issued in this way, even if they are moved or exchanged with other users, this action does not constitute a “foreign exchange transaction”.

However, with this method, the app or web service cannot generate “revenue” from the points themselves. In the previous examples, the business model would need to be constructed in such a way that revenue is generated:

• From advertising fees received from the operators of smartphone apps that encourage downloads, etc.
• From the revenue of the e-commerce site itself

These are the necessary steps to build a business model.

Eliminating the Direct Link Between Points and Cash

Even if a user purchases points, if there is no way to convert these points into cash, the exchange or transfer of points between users does not constitute a “foreign exchange transaction”. Speaking succinctly about this “conversion into cash”,

If 1 point is worth ● yen, then 10 points would be worth ● yen

As such, if there is a clear exchange rate for “points”, it becomes undeniable that the act is a “conversion into cash”. On the other hand, if there is no rate, even if cash is ultimately handed over, it would be difficult to call this cash delivery a “conversion of points into cash”.

It can be said that many so-called “tipping” systems use this method. In other words, for example, in a service where an idol performs video distribution and users “tip” each idol, the structure is as follows:

1. Users purchase “points” using cash
2. Users “tip” the “points” to the idol
3. The idol receives a reward in a form such as “Idols who receive more than 10,000 points in a month receive a monthly reward of 100,000 yen” based on the points used on them

In this system, especially in the scene of cashing, there is no clear exchange rate (“1 point is ● yen”) between “points” and “cash”. For example,

• No reward if less than 10,000 points in a month
• A reward of 100,000 yen if more than 10,000 points in a month
• A reward of 150,000 yen if more than 20,000 points in a month

By designing the rewards in this way, there is no rate of “how much is 1 point”, and the money the idol receives is ultimately the “compensation for actively engaging to the extent of receiving many points”. If you only issue points used in this way, you do not need to register for the fund transfer business.

Using a Point System for Debt Collection

Another method is to use points strictly for the purpose of ‘debt collection’.

As mentioned before, the main reason why the law is wary of foreign exchange transactions is because they are ‘bank-like’ activities. Banks, for example, do not touch the reasons why money moves, such as:

• Companies paying salaries to their employees
• Buyers paying sellers in personal transactions
• Transferring your share to someone who paid on your behalf at a restaurant

People trust banks and deposit a significant portion of their assets in them for convenience, precisely because banks facilitate the movement of money between individuals and companies.

In contrast, the act of another company temporarily holding money from person A when they purchase a product from person B and delivering it to person B is not a ‘foreign exchange transaction’. This is merely a debt collection based on the underlying contract (sales contract), and it does not provide the convenience and peace of mind that banks do.

When Mr. A purchases a product from Mr. B, another company temporarily holds the money from Mr. A and delivers it to Mr. B

Similarly, in the case of self-issued points, if the movement of those points is merely a debt collection based on a clear underlying contract using a point system, that action does not fall under ‘foreign exchange transactions’, and registration as a funds transfer business is not required.

However, there are two important points to note when using this method.

Point 1: Confirming the Existence of a Causal Contract, etc.

For instance, “Mercari” is a service that allows users to establish sales contracts with each other on their own site, and the cause of point transfers between users is always such sales contracts. In this case, the existence of a contract that causes point transfers and the securing of evidence should be sufficient.

Similarly, on a Q&A site, for example, the cause of point transfers between users is always “compensation for receiving an answer (remuneration for a contract of work?)”.

Furthermore, in the case of a so-called “split bill app”, the cause is always “splitting the cost of a meal for multiple people paid by the user receiving the points at a restaurant”. The split bill app “Paymo” requires the upload of a receipt when requesting a split bill.

This specification is likely based on the intention to preserve evidence of the contractual relationship that causes it.

In this way, if you limit the use of the app or service, it becomes clear what the cause of the point transfer is.

However, in a service where “users can send points if they agree after any exchange between them”, it becomes unclear what kind of contract was established between each user, what is the evidence of the contract, and so on. In this case, the exchange or transfer of points between users cannot be said to be “based on a specific contract with concrete evidence”. And the transfer of points with an unclear cause contract, from the definition of “foreign exchange trading” mentioned at the beginning,

Receiving a request from a customer to move funds using a mechanism that allows funds to be moved between remote locations without directly transporting cash, and accepting or carrying out this request

It can only be evaluated as a request to “move funds (not based on a specific cause contract) (in itself)”, and like a bank transfer, it falls under foreign exchange trading.

Point 2: Prompt Cash Conversion of Points

If it is merely a collection agency, as mentioned above,

When Mr. A purchases a product from Mr. B, another company temporarily holds the money from Mr. A and delivers it to Mr. B

This action, realized simply by using “self-issued points”, should promptly deliver cash to Mr. B (allow Mr. B to cash in promptly). Mercari, in relation to personal transactions on the Mercari service,

1. Allows the buyer to purchase points in cash
2. Transfers points to the seller at the time of purchase
3. And the seller can convert these points into cash

Although it was operating its self-issued points in this way, regarding this cash conversion,

• On December 4, 2017, it set a 90-day limit for cash conversion of points
• On September 20, 2018, it extended the cash conversion deadline to 180 days

It made this announcement.

This can be said to be a conscious response to the above problem. In other words, unless it is an entity that temporarily holds money (or point equivalents) for the purpose of collection, the excuse of “not being a bank or a fund transfer business” will not hold.

Summary: Consult with the Lawyers who are Professional with Transferring of Points and Funds

As such, the law is wary of business schemes that involve having users purchase self-issued points or exchange/move them among each other, on the grounds that “if they become similar to banks, they should be subject to appropriate legal regulations”.

In other words, in relation to this theme, there is a tendency that “the more you try to enhance convenience for users, the stricter the legal regulations become”. For example, even in the case of the timing of cashing out mentioned above, normally thinking,

Not forcing users to cash out early, but allowing them to cash out when they want to

should be a “good thing” for users in terms of “convenience”. However, this convenience gives users an incentive to “keep the points as points”, which in turn can lead to an increase in the damage users suffer if the company goes bankrupt. The law is wary of this.

Business schemes using self-issued points inevitably require:

• A mechanism that makes users want to purchase those points
• Convenience for users
• Exchange or movement of points among users
• A mechanism for cashing out

At that time, what kind of design should be made to avoid legal problems? This theme is indeed a “frontline” legal issue for IT and venture companies, as evidenced by Mercari changing its policy in 2017 and 2018. It is desirable to design the optimal point system in specific businesses together with a law firm that has expertise in this field.