The article analyzes the possibility of including one of the types of digital rights of cryptocurrency as a potential object of bankruptcy estate. It is concluded that it is possible to include cryptocurrency, which is stored in a cryptocurrency wallet in the electronic system into the bankruptcy estate up to its real value with which creditors’ claims can be satisfied. The problems arising in connection with the inclusion of cryptocurrency in the bankruptcy estate of the insolvent debtor associated with the anonymity of its ownership and the specifics of the foreclosure have been identified. The anonymity of the existence of cryptocurrency in the electronic system does not allow the inclusion of property in the bankruptcy estate without the assistance of the debtor. It is recognized that cryptocurrency cannot be traded via electronic auctions in bankruptcy proceedings due to its existence in the framework of a special information system and short time price volatility. A distinction between cryptocurrency and electronic money has been made.
This article analyzes the concept and essential properties of blockchain: decentralization, usage of cryptography, autonomy, presence of consensus mechanisms, anonymity and transparency of the chain of blocks. Alongside the advantages, the article describes the disadvantages of blockchain: high cost of development and implementation of blockchain-based solutions and their utilization (high energy requirements); low speed of data processing; potential unauthorized changes to the database; absence of confidentiality of blockchain users. The author considers the scientific views on the need for legal regulation of the blockchain. An overview is presented on the global achievements in the area of blockchain standardization, as well as key vectors of standardization: terminology, reference architecture, security and confidentiality, management, smart contracts. An original definition of blockchain that takes into account its essential properties is provided. Two spheres of regulation are distinguished: legal regulation of relations that apply blockchain, and regulation of the blockchain technology itself (terminology, ontology, taxonomy, reference architecture, management, etc.). The conclusion is made on invalidity of the proposals on the unified legal regulation of blockchain (for example, formation of the universal law on blockchain), implying different areas of implementation of this technology. The author justifies the need for standardization of blockchain, as well as describes the key advantages of such standardization. It is underlined that the standards would not substitute the specific legal regulation, but would ensure the conditions for creating the legal framework in accordance with the requirements of technological reality.
The subject of this research is the legal norms that regulate legal relations in the context of application of blockchain technology and smart contracts based on it in the area of online advertising and intellectual property. The object of this research is the social relations emerging in the indicated spheres. Analysis is conducted on the concepts and characteristics of blockchain technology and smart contracts. The author also reviews some controversial theoretical and practical issues, such as terminology, legal nature of blockchain, smart contracts, and related concepts. Examples are provided of the currently existing blockchain platforms and services premised on them. The novelty of the conducted research consists in focusing on the relevant problems that emerge in the conditions of network economy in such spheres as online advertising and intellectual property. On the example of blockchain platforms functioning in the indicated spheres, the author reveals the problems the can be resolved using such technologies. The author also underlines certain practical difficulties that arise in the process of application of blockchain and smart contracts, particularly associated with the absence of legal definition of a number of concepts. The examples of corresponding court decisions are provided. A proposal is made on the need for consolidation on the legislative level of definitions of such concepts as “blockchain”, “smart contract”, “cryptocurrency”, and “token”.
The combination of the Internet of Things (IoT), a type of Cyber Physical Systems (CPS), with Distributed Ledger Technology (DLT) platforms, also known as blockchains, provides an unprecedented opportunity for automating smart contracts that monitor the execution of legal contracts to ensure compliance. The absence of formalization of smart contracts based on recognized legal notions may however result in uncertainty during contract monitoring. The need for formal smart contract specifications, together with refinements and transformations to DLT implementations (code), is undeniable and urgent. This thesis, following a Design Science Research methodology, aims to partially address this need by developing a formal contract specification language called Symboleo, and selecting the suitable target language for generating smart contract code from Symboleo specifications. This thesis contributes a syntax and axiomatic semantics for Symboleo, with concepts rooted in a legal ontology, and supported by an editor. It also provides an analysis of possible target smart contract programming languages. These artifacts are evaluated with a comprehensive example of sales of perishable goods, with positive results.
The article explores modern trends in the development of digital money. The purpose of the article is to identify and analyze the risks of digital money, and to study scientific approaches and tools for managing these risks. The authors use general scientific and special research methods, including comparative legal analysis and a systematization method, as well as methods of economic theory: positive analysis and scientific abstraction. The research highlights the strategic challenges and guidelines in the development of digital money in the Russian Federation and shows the difference and common features of digital and electronic money. Based on a comparative analysis of private and national digital money, we conclude that the digital money of Central Banks is more flexible and more reliable for consumers than private cryptocurrencies. We systematize the risks of digital money circulation at the micro, mezzo and macro levels, as well as identify the essential tools for managing them. The authors note that exogenous risk management tools are more typical for private cryptocurrencies, and endogenous tools will apply to digital money of central banks, in particular, the development of an appropriate configuration of Central Bank digital currency. The study may be useful for digital money users, as well as government agencies implementing policies and regulations on the issue and circulation of digital money in Russia.
In the paper, the author analyzes the legislation of Germany and Italy, which regulates financial technologies, and highlights the official positions of the state bodies of these countries regarding digitalization and its elements. The trends in the development of legislation in the digital sphere and its prospects are identified. In addition, the German and Italian scientific doctrine is being studied, which, as noted, does not offer a unified approach to financial technologies, in particular to a smart contract, but contains conflicting positions and points of view. Based on the study, it is concluded that there is a need for legislative regulation of financial technologies not only at the national level, but also at the international level. It is emphasized that legislation must find a compromise between public interests, economic needs and technological capabilities in order to make the most effective use of digital technologies in various spheres of public life.
The article deals with an important and relevant topic – the definition of the concept and essence of cryptocurrencies, the study of the problems of their legal regulation, the rationale for control over their turnover, as well as the analysis of ways to counter money laundering that involves cryptocurrency. The authors emphasize that measures taken exclusively at the state level are not enough to create an effective, integrated and comprehensive system for regulating the legal status of cryptocurrencies. Therefore, international cooperation and the strengthening of cooperation between various states in the field of cryptocurrency regulation is important. The authors analyze the scientific doctrine regarding the essence of cryptocurrency. It was found out that there was no single approach to the definition of “cryptocurrency” among scientists. Moreover, cryptocurrencies in various laws of the world have different status. The authors used general scientific and special scientific methods, which provided an objective analysis of the purpose of the study. The research methods were used in interconnection and interdependence, which ensured the comprehensiveness and completeness of the research, as well as the validity of the obtained scientific results. The authors have determined states where cryptocurrency has an official status, is at the initial stage of legal regulation or completely prohibited at the state level. The relevance of the research consists in the actual absence of the legal framework for the regulation of cryptocurrencies, which is conditioned by the novelty of this phenomenon and the problems related to its functioning. The authors proposed their own definition of cryptocurrency based on its main features.
For the last five years there has been a global boom of interest in cryptocurrencies, followedby the fall of their rates; at the same time, there was a wave of enthusiasm regarding the publicoffering of tokens (ICO) and disillusionment in them (due partly to the active counteraction byAmerican and other influential regulators). Disputes on doctrine moved from suggestions of anew object of property rights to prohibitive initiatives. As these eventful years have shown, theglobal financial system is sufficiently stable to digest even such a decentralized phenomenonas cryptocurrency. In my opinion, it is now time to recall the tribulations of former discussionsand draw a conclusion concerning their interim (one hopes) normative results.
The article presents a study of blockchain technology from the point of view of legal regulation prospects, as well as the possibility of using one of the areas of this technology application -smart contracts as an analog of contracts in civil circulation, taking into account the legal field of the Russian Federation. The purpose of the article is to form recommendations on the possible development of areas of Russian regulation of blockchain technology and the use of smart contracts. The article analyzes international approaches to the regulation of digital technologies, practices, and features of their application, as well as the proposed legal norms of the Russian bill on the use of digital technologies in civil turnover. The article shows the huge possibilities of using blockchain technology, as well as the possible risks of its use in certain areas. The article examines the opinions of scholars on the prospects for the development of legal regulation of blockchain technology in general, and smart contracts, in particular, in the Russian Federation. It is noted that since regulatory regulation and judicial practice on smart contracts in the Russian Federation has not yet developed, at the moment, participants in smart contracts cannot exercise the right to protection. It is indicated that the regulation of smart contracts does not require a separate regulatory design, so with the existing technical innovations, they are subject to classical contract law, which has formed a complete theory of transactions, which can be applied to cases of using smart contracts. In connection with this conclusion, the authors give recommendations on making amendments to the current civil and emerging digital legislation.
Modern international hydrocarbons turnover is becoming more autonomous and decentralized. This process is facilitated not only by the introduction into contractual practice of such network technologies as smart contracts and blockchain platforms, but also by the wide dissemination of sources of non-governmental regulation (lex petrolea). In the context of the network paradigm of private international law, the classic problem of conflict of laws is exacerbated. The author considers the conflict-of-laws aspects of the use of smart contracts based on blockchain technology in cross-border oil and gas transactions, taking into account the fact that the use of computer algorithms does not create a new contract, but is only a special form of transaction. Such “automated” transactions in the oil and gas sector involving multiple jurisdictions create uncertainty in their legal regime. In the absence of a comprehensive substantive legal regulation, and in connection with the phenomenon of lex petrolea, the conflict-of-laws method of regulation predominates. The author shares his reasoning concerning the possibility of extending the application of Regulation No. 593/2008 of the European Parliament and the Council of the European Union “On the Law to be Applicable to contractual obligations (Rome I)” to smart contracts. The author concludes that existing regulation is quite applicable to smart contracts in cross-border oil and gas transactions. Another question is whether the law, which is applicable by virtue of a conflict-of-laws rule, provides for an appropriate substantive basis. To date, special legislation on smart contracts has been passed in only several American states. It is predicted that in the future, private international law will not only determine the law applicable to smart contracts, but will also be a guide to disseminating the positive experience of legal regulation of smart contracts in different countries.
Recently, the legislation on cryptocurrencies has been rapidly developing both in foreign countries and in the Russian Federation. The paper analyses trends and prospects of legal regulation of cryptocurrency emission and allocation, represents various approaches to this issue in the international arena. The author provides us with a thorough analysis of recent trends in the development of legislation on the emission and allocation of cryptocurrencies in the world, substantiates the theses that states are constantly seeking to settle the digital realm. By defining the legal nature of cryptocurrencies and referring them to a particular object of legal regulation, the state streamlines and systematizes the rules that will be applied to mining and ICO. Whether the market is interested in such regulation is a philosophical question, but the state as a sovereign cannot afford to recognize (the lack of regulation should be treated as a tacit recognition in this case) the existence of cryptocurrency as an alternative to the national payment unit.
The paper carries out a legal analysis of three models of settlements by letters of credit with the use of distributed ledger technology. First, this refers to the model of settlements that uses blockchain as a way of transferring documents under the letter of credit. Second, the author investigates the model of settlements where two smart contracts are used. In the author’s view, such smart contracts should be seen as a way of executing the contracts that, in practice, form the settlement procedure with the use of letters of credit. Third, the most interesting is the settlement model where the payer and the recipient of funds (payee) enter into one smart contract that provides non-cash settlements between them with the use of the P2P service. There is no financial intermediary that organizes non-cash settlements in this settlement model. This difference makes it possible to conclude that settlements similar to settlements with the use of letters by credit via blockchain technology and carried out on the principle of P2P, should be considered as a new form of non-cash settlements. The peculiarity of this form of non-cash settlements is the opportunity given to direct participants of the settlement to fulfil their monetary obligations without using cash and without any assistance of financial intermediaries.
In the context of digitalization, the issues of determining the legal regulation of matters related to theuse of cryptocurrencies are naturally becoming increasingly relevant. The qualification of cryptocurrencyas an object of civil rights is one of the most important aspects of the legal regime of cryptocurrency. Theneed for high-quality development and registration of the legal regime of cryptocurrency, incorporationof this phenomenon into the legal system of the Russian Federation requires a detailed study of theissues of determining the place of cryptocurrency in the system of civil rights, attributing legal signs ofproperty or property rights to it, or, conversely, postulating and consolidating its fundamental identityand individuality. Analysis of the latest legal initiatives leads us to conclude that the legal regulation isinconsistent and ambiguous. Meanwhile, the courts repeatedly faced the proceedings and resolutions ofissues of cryptocurrency circulation, in particular in contractual disputes and bankruptcy disputes, whichpredetermined a certain judicial community approach to the concept of cryptocurrency and it’s qualificationsas an independent object of civil rights
The article identifi es the defi nition and legal nature of cryptocurrency mining, raises the question of whether mining is a business activity and in which cases it becomes the object of legal regulation. The concept of mining is compared with similar phenomena — banking, securities issuance, money issuance by Central banks, on the basis of which a conclusion is made about the features of this business line.
The aim of this study is to establish the legal status quo of cryptocurrencies in the Russian Federation. The hypothesis presented by this study requires a profound reference to existing and proposed legislation as well as to the statements of a number of international, supranational and national regulatory bodies.
 This study uses qualitative research methods, and primarily consists of descriptive research. Doctrinal and comparative law research also lie at the very heart of this paper as they enable the author to identify, analyze and synthesize a number of foreign (incl. EU), and Russian laws. As a result, the emergence of new institutions and the modernization of existing ones, based on new technological breakthroughs, undoubtedly affect the already existing institutions that are under the influence of changes. Money, which is at the heart of finance, already loses its material forms of expression and regulating properties, alternative tools emerge in the economy that are ready to act as alternatives to this traditional institution. The alternative to money and monetary mechanisms will affect the basic instrument for regulating economic relations and the financial system of the state as a whole - a monopoly on the issue of currency. The nature of cryptocurrency, its features do not make it possible to attribute it entirely either to the means of payment, or to securities, or property. In the existing international community, cryptocurrency lacks a single focal point. Only a progressive view and modern legal regulation of cryptocurrency will create conditions for the development of legal and, most importantly, safe relations in the field of cryptocurrency.
Problem setting. The work is devoted to the study of the legal status of cryptocurrency as an object of taxation. The legal status of cryptocurrency in legal relations between tax authorities and individuals or legal entities is an urgent problem, since there is only a small number of works on this issue. Of particular note is the study of international experience in taxation of cryptocurrency transactions, as well as an analysis of the most relevant proposals for amending national legislation in order to establish the legal status of cryptocurrency and transactions related to cryptocurrency as an object of tax legal relations. Analysis of recent researches and publications. Despite the great relevance of this topic, in the modern science of tax law there are no fundamental scientific works and studies on the problems of taxation of cryptocurrency and cryptocurrency transactions. Target of research. The purpose of the scientific article is to conduct research on the legal nature of cryptocurrency, as well as the disclosure of theoretical, practical problems and features of legal regulation of cryptocurrency and operations related to the use of cryptocurrency in modern tax law. Article’s main body. The article deals with the legal nature of transactions connected with the use of the cryptocurrency as an object of tax relations. The issues of the possibility of attributing income, as well as profits from cryptocurrency transactions to the objects of taxation of personal income tax, profit tax, and value-added tax, are disclosed in accordance with the current tax legislation. The following conclusions have been drawn: it is impossible to impose the relevant taxes on income and profits from transactions with the cryptocurrency; there is a conflict in the current legislation, according to which the proceeds from transactions with cryptocurrency may be subject to the Law ‘On Prevention and Counteraction to Legalization (Laundering) of the Proceeds from Crime or Terrorism Financing, as Well as Financing Proliferation of Weapons of Mass Destruction’ In addition, foreign experience of legal regulation of transactions with cryptocurrency in tax legislation in such economically developed countries as the USA, Great Britain, Canada, Germany, Switzerland, etc. has been analyzed. It has been established that nowadays, in world practice, there is no unambiguous approach to the tax regulation and taxation of cryptocurrency transactions. So, in some countries, the income from operations with cryptocurrency is taxable, while in others cryptocurrency transactions do not belong to objects of taxation. Conclusions and prospects for the development. As a result, the author presents her own proposals on amending the tax legislation aimed at determining the legal status of cryptocurrency transactions in tax law. The article is devoted to the legal nature of transactions related to the use of cryptocurrency as an object of tax relations. Foreign experience of taxation of operations with the cryptocurrency is analyzed. The author considers current proposals for amending the tax legislation of Ukraine, who’s the purpose of which is to determine the legal status and control measures for compliance with tax legislation in the implementation of cryptocurrency transactions in tax law.
Dmitrii Aleksandrovich Kolesnichenko, Olga Viktorovna Kolesnichenko
The subject of this research is legislation, official interpretation, case law, and doctrinal sources on taxation of cryptocurrency mining in the Russian Federation with regards to personal income tax. The author verifies the hypothesis on the absence of economic basis for collection of personal income tax for cryptocurrency mining, thus there is a need for fundamentally new model of legal regulation for taxation of this activity. Special attention is given to assessment of tax consequences of mining based on the content of official interpretation of the Ministry of Finance of the Russian Federation, as well as with consideration of the developed in the doctrine basic approaches towards determination of the legal nature of cryptocurrency as property and property rights (other financial instruments. The author’s significant contribution consists in substantiation of the conclusion that the current system of legal regulation has no economic basis for collection of personal income tax for cryptocurrency mining; at the same time, future taxation of mining can be based on the patent tax system of taxation. It is reasoned that in order to ensure the implementation of the indicated special tax regime, it is necessary to attribute mining to entrepreneurial activity, as well as modify legal definition of the latter, which is formulated in Article 2 of the Civil Code of the Russian Federation. The author determines the legal prerequisites for taking cryptocurrency mining activity out of shadow and its lawful exercise in the Russian Federation.
The article presents a comparative legal analysis of the modern legal regulation of the multidimensionality of digital electronic currency in BRICS countries. It assesses the possibility of civil circulation of a digital property right as an economic and legal segment without clear legal regulation. It analyzes the judicial practice related to confidentiality, acquisition, and trading of virtual currency. The article justifies the ability to integrate a single digital currency – CRYPTOBRICS, a single equivalent for all payments in the form of cryptocurrency within the framework of BRICS for settlements and increase in the trade exchange volume on these international platforms. This will provide for the legalization and consolidation of the legal framework of cryptocurrency within the context of objects of civil rights, allowing BRICS members to become regulatory leaders in the field of digital assets. We formulated a proposal to create an international agreement defining the parameters of the digital currency issue based on blockchain technology for interstate transactions, which allows the BRICS counties to establish the next stage of their mutual integration for the free trade zone and the customs union. Unifying the civil circulation of cryptocurrency and using the platform of modern non-monetary digital circulation as our foundation, we concluded that BTC can be classified as a type of digital property right. The article justified the theoretical definition of digital property right in the form of cryptocurrency as a resource stored in a device or electronic system which allows the end user to complete transactions using virtual currency and denominated in another payment unit, as opposed to currencies issued by sovereign states. We suggested that insurance companies be insured against all possible risks associated with cryptocurrency circulation and cybersecurity as a civil measure to protect the order of intangible digital codes – cryptocurrencies.
Introduction: the paper deals with the phenomenon denoted by the term "cryptocurrency" from the perspective of modern civil circulation, its relationship with other statutory concepts which characterize the digital economy. It is necessary to introduce the term "electronic fiducion" into the legal lexicon to denote the phenomenon that is known as "cryptocurrency" at the everyday level. The authors' definition of the category "electronic fiducion" is proposed. The purpose of the study is to conduct a comprehensive legal analysis of the phenomenon referred to at a simple level as "cryptocurrency" from the perspective of the object of civil relations. Methods: the methodological framework for the study is a set of methods of scientific knowledge, among which the main ones are the methods of analysis, synthesis, generalization and comparative law. Results: the authors' well-founded position is based on the legislation and the opinions of the competent scientists on the issues of determining the legal essence of the category, which is now referred to as "cryptocurrency" from the perspective of civil law. Conclusions: as a result of the study the authors proposed to introduce in the legal lexicon, instead of the term "cryptocurrency", the term "electronic fiducion" which denotes the universal contractual payment (settlement) means with the decentralized record of the transactions based on free will and good faith, free from the external administration used by the contractors on the telecommunication network "Internet".
Cryptocurrency and the problems of its legal regulation have recently become the subject of numerous studies. Legal science, including criminal law, does not stand aside. The contradictory nature of the legal nature of cryptocurrencies, the inability to accurately determine their species affiliation, a fairly large number of questions from the law enforcer led to an extensive doctrinal discussion. In author’s opinion, one of the most urgent questions is the definition of cryptocurrency relations as an object of crime and how errors in the perception of these relations and, most importantly, their subject matter, affect the enforcement and subsequent qualification of crimes. The paper discusses in detail the main points of view on the essence of cryptocurrency, the position of scientists on this issue. The author explains why cryptocurrency cannot be attributed to the types of securities, currencies or currency values known to modern law, and offers her own approach to the definition of cryptocurrency and cryptocurrency relations, and indicates how this affects the application of the criminal law.
With the rapid development of new technologies taking place during the 4th Industrial Revolution, new types of disputes of significant specificity have gradually begun to emerge. Among such cases a special category of cases has been formed by disputes arising from smart contracts based on block chain technology. There are two possible ways to resolve such disputes. Under the first approach, they are subject to consideration by traditional arbitration institutions, guided by the usual rules and guidelines (blockchain arbitration). The second approach involves the need to create innovative applications based on blockchain technology and designed to resolve disputes arising in a digital decentralized environment ( blockchain arbitration). Such applications, in turn, are divided into two groups. The first group consists of projects involving the creation of a special arbitration combining the advantages of international commercial arbitration and blockchain technology; the second group includes projects involving the establishment of a decentralized quasi-judicial system for dispute resolution. The paper attempts to analyze the most interesting projects related to each of the listed groups and assess the prospects of their development. Based on the results of the analysis, the author comes to the conclusion that the implementation of such projects will lead to the emergence of many issues (among which the problem of choice of applicable law, determination of place of arbitration, arbitrability, as well as the possibility of recognition and enforcement of awards made by such arbitral tribunal). Under the influence of new technologies, international commercial arbitration is gaining a new direction of its development. In the future, the development of new technologies will require not only rationalization of existing dispute resolution mechanisms, but also a fundamental rethinking.
Crypto currency, bitcoins and virtual currencies are topics the scientific community has been discussing for years. The Bank of the Russia has repeatedly warned about high risks of investments in crypto currencies and risks in its turnover. Populations of many countries continue to lose their investments in virtual currencies, which are positioned by their developers as tamper-proof. However, there is still a vacuum in the legal regulation of crypto currencies and the legitimacy of their use as legal payment. The article presents the author’s view on a number of issues arisen in the process of crypto currency, bitcoin, digital and virtual currency use and presents ways to solve them in the context of Russian and world experience.