Sergey Ivantsov, E. L. Sidorenko, Борис Спасенников, Yuri Berezkin · 5 authors
The authors have analyzed crimes connected with the use of virtual currency in the regional and international aspects. They introduce a new category of «cryptocrime» understood as the aggregate of publically dangerous acts, united by their common systemic characteristics, committed against or using the products of distributed registries (cryptocurrency, tokens and other forms of digital financial assets). They analyze each of the cryptocrime segments separately: illegal trade in psychoactive substances (narcotics, psychoactive substances, precursors), pornography and other prohibited content (including illegal services); laundering of criminal proceeds; theft of cryptocurrency and tokens. Using the scientific research methods (comparative, sociological, statistical analysis and extrapolation of data, building a trend line, etc.) the authors identify regularities in the dynamics of each type of cryptocrime as well as key factors facilitating them. The goal of the authors is to conduct a systemic examination of crimes committed against and using cryptocurrency and to determine the prospects of developing different segments of cryptocrime. To achieve this goal, they analyze qualitative and quantitative characteristics of illegal trade in narcotics and pornography, legalization of criminal proceeds and theft of digital assets. They name the anonymity of cryptocurrency as a factor facilitating illegal trade in drugs, while the growing scope of the legalization of criminal proceeds and theft is facilitated by the fact that cryptocurrency and tokens do not have a legal status as objects of civil law and objects of encroachments on property. The analysis allows the authors to conclude that without effective criminological measures the level of such crimes will continue to grow and may double by the end of 2019. According to the authors, the priority directions of international criminal policy in the sphere of cryptocrime prevention include determining cryptocurrencies’ legal status, licensing cryptocurrency trade (stock exchange services, exchange platforms, companies issuing tokens), setting international standards of counteracting the legalization of criminal proceeds and the financing of terrorism, creating a cryptocrime database.
ГЕНЕЗИС ПРАВОВОГО РЕЖИМУ КРИПТОВАЛЮТ У ЗАРУБІЖНИХ КРАЇНАХ ТА УКРАЇНІПостановка проблеми.Нормативне визначення та регулювання відносин створення, обігу, статусу криптовалют є обмеженим у зарубіжних країнах і відсутнє в Україні, хоча цей елемент ринкових відносин є досить
The article provides an analysis of the standard of proof «reasonable suspicion» in practice of the European Court of Human Rights (further referred to as ECtHR), which is recognized as a source of law in Ukraine next to the European Convention of Human Rights (further referred to as ECHR). It is argued that a concept of standards of proof is relatively new in Ukrainian legislation, where no legal definition of particular standards is provided. National courts face complexities in application of the «reasonable suspicion» standard that leads to systemic violations of fundamental rights and numerous cases before the ECtHR versus Ukraine. Based on systemic analysis of academic literature and practice of the ECtHR regarding «reasonable suspicion» standard, that is applicable while a breach of Article 5 of the ECHR is at stake, the authors have elaborated criteria of the reasonableness of the suspicion in criminal proceedings that can serve a guidance for the national courts. Reasonable suspicion of committing an offence can be defined as an aggregation of facts and information capable to persuade an objective observer that the person may have committed an offence. Despite evidence to satisfy the reasonable suspicion standard shall not be of the same level as required for justification of the criminal charge or the conviction, reasonable suspicion cannot be of purely subjective nature, it shall not be described in abstract terms either. Finally, the standard of proof «reasonable suspicion» is of dynamic nature. The longer the period of fundamental rights limitation is the stronger justifications for such interventions are required. Even while rendering the first decision ordering the detention on remand, national courts shall substantiate not only the persistence of reasonable suspicion, but justify with evidence an existence of «relevant» and «sufficient» reasons for the detention. In this article existence of evidence at the pre-trial stage is consistently demonstrated, that is supported by numerous cases of the ECtHR regarding «reasonable suspicion» standard.
Development of information technologies, cryptocurrencies and technology of distributed networks has caused the appearance of smart con- tracts as new types of civil contract. They have been widely used in recent years in such areas as initial coins offering (ICO), financial sector, inter- national trade and public services. At the same time the legal status and legal regulation of smart contracts are uncertain. These uncertainties cause many legal risks of smart-contractsutilization. The purpose of this article is to find out the conception of smart contract as a form of civil contract, to research its legal status and legal regula- tion issues and to develop proposals for the improvement of legal regulation of smart contracts and cryptocurrencies in Ukraine. By its legal nature a smart contract is a digital form of a civil contract realized in programming code automatically executed in a distributed network. Like a civil contract, smart contract has such elements as parties, subject and essential terms of the contract. The legal force of a smart contract depends on whether it includes the fundamental features of a civil contact, such as evidence that parties have intention to create legal relations, understandabil- ity of contract conditions and possibility to perform the terms of the contract under duress. The main advantages of a smart contract are its ability to significantly accelerate and reduce costs of the transaction and guarantee the fulfillment of contract terms regardless of the contractual parties' and third parties' will. The main risks of a smart contract are uncertainty of legal status of a smart contract and cryptocurrencies as a means of payment, complexity of expressing the contact terms in a mathematical algorithm, risk of software bugs and hacking attack. To solve the problems of legal regulation of smart contracts in Ukraine it is necessary to change the legislation in order to settle the legal status of cryptocurrencies and recognize a smart contract as a form of a civil contract. It is necessary to identify parties of the smart contract, confirm their agreement on the terms of the smart contract by using digital electronic signature. A smart contract should be supplemented by text application containing the es- sential terms of the contract which will have legal force in trail. It is necessary to implement blockchain technology in the state registers and pro- vide legal ability to make adjustments in the registers automatically for the performance of smartcontracts.
The subjects of information legal relations are investigated in the scientific article. The authorities of the State Fiscal Service of Ukraine (next – SFS of Ukraine) as a subject of information legal relations are separately considered. It is noted that the participation of the subjects of power authorities in information legal relations has its peculiarities, the main of which is the fact that the main prerequisite for the participation of such a subject in the information legal relationship is his competence.
The technology of blockchain (‘Blockchain’) realises a more efficient, equitable, and transparent distributed ledger system. An important characteristic of Blockchain is its automated, de-centralized, and neutral ledger system which could be useful to carry out Corporate Social Responsibility (‘CSR’) initiatives. Part I of this paper suggests that the Blockchain will evolve to become a permanent ‘disruptor’ with the potential to transform corporations’ CSR practices. Part II introduces the Blockchain and identifies its significance to CSR, both in the United States (‘U.S.’) and internationally. Part III explains how the Blockchain can help demonstrate that a corporation is a ‘responsible business’ through good corporate governance, effective supply chain management, and exercise of the triple bottom line – people, profit, and planet. Part IV examines how the Blockchain’s disruptive role influences corporate decision-making, especially its implications for corporate investors, financial institutions, and the practice of law as well as its impact on intellectual property and data privacy functions. Part V discusses the U.S. current regulatory landscape and growing trends relating to the Blockchain. Finally, Part VI recommends lawmakers and corporations consider adopting a legislative framework that aligns with the United Nations Sustainable Development Goals (‘UN SDGs’) to demonstrate responsible investment and good corporate governance. Accordingly, the Blockchain can help corporations transform CSR practices and assist lawmakers to regain public trust through effective rulemaking that demands corporate accountability on domestic and international issues.
The article outlines the logical legal and regulatory sequence of building a highly civilized, highly developed and democratic Ukrainian state that will maximally facilitate the implementation of natural inviolable freedoms, rights, security and supreme power of a Ukrainian citizen and his social duties, rights and responsibilities in the family, community , nation and state. After all, Ukraine is shocked by populist speeches of immoral and illiterate government officials of different levels, their pseudoreforms, pseudo-decentralization and other chaotic actions lead the state to collapse, and people are lowering them to even greater poverty. The people are completely deprived of their property and state control. Prosecutors, judges, police, the SBU and other governing bodies of the state are not controlled by the people. The state's control went into the hands of criminal-oligarchic clans, which loose it uncontrollably and cynically. It should be noted that the management of a civilized state is the most complicated process in the world, which is tens of thousands of times more complex than the most complex computer and space technologies. Therefore, the management of the state categorically can not allow people with immoral reputation and without deep theoretical knowledge and practical skills in management science, micro-and macroeconomics, finance and freedoms and human rights. To build a Ukrainian state that will serve exclusively a man of honest work, he will constantly increase the welfare of his life and the power of the state and make it impossible for anyone to parasitize, and in any way, for another's account, one should link in one harmonious and dynamic whole such state-building mechanisms: socially-economic justice; the selection and appointment by the people of government personnel at all levels and control over their work; development of industrial production, entrepreneurship, agro-industrial complex and farming; wholesale and retail trade; communications and engineering; efficient use of all natural resources, recycled materials and private and public property; social infrastructure of settlements; foreign economic activity and investments; development of science and innovation; prophylactic, diagnostic and medical care of the population; the protection of freedoms, rights, security, the supreme power of man and the clear and unconditional compliance of all citizens and officials with the laws in force; internal and external security of citizens, communities of settlements and the state; operational and statistical control over the implementation of strategic and current programs for the development of settlements and the state, their diagnosis and improvement of management, systematic and comprehensive explanatory and educational work in Ukraine and abroad, as well as the formation of a highly civilized worldview of Ukrainians and their unification into a single monolithic highly professional and active National Community and state-building force.
Dyntu V. A. The roots of cryptocurrencies / V. A. Dyntu // Правові та інституційні механізми забезпечення розвитку України в умовах європейської інтеграції : матеріали Міжнародної науково-практичної конференції (м. Одеса, 18 травня 2018 р.) У 2-х т. Т. 2 / відп. ред. Г.О. Ульянова. – Одеса : Видавничий дім «Гельветика», 2018. – С. 388-392.
Open access
Ukrainian Legal and Forensic Studies
Legal Studies and Reforms
Legal, Health, Environmental and COVID-19 Challenges
This article concerns the correlation between criminal law and procedure and the technical, technological and civilisation progress in the form of possibility to stand bail in Bitcoin virtual currency (cryptocurrency) in the criminal procedure. The article, firstly, presents introductory remarks to provide information about the analysed subject. Secondly, there is an outline of the essence and mechanism of applying bail in criminal procedure. Thirdly, the process transformation of money as an element of assets is presented. Fourthly, the article presents a categorisation of digital money and an economic qualification of Bitcoin. The above provides a background for argumentation relating to the legal qualification of Bitcoin as money and presentation of the basic threats connected with this cryptocurrency. The article ends with a brief summary containing the authors’ view on the subject of these reflections and a proposal of the desired legal amendments, addressed to the Polish legislator.
The aim of the article is to study the theoretical and legal possibilities of using cryptocurrency in purchase and sale contracts, to determine the specificities of such a phenomenon as cryptocurrency (Bitcoin) from the perspective of jurisprudence, and to draw attention of legal scholars primarily to possible further scientific researches on the introduction of this phenomenon in the modern civilian legislation of Ukraine. The subject of the study is the specificities of using cryptocurrency in contracts of purchase and sale. Methodology. The research is based on an analysis of legal acts on the legal regulation of cryptocurrency in Ukraine. By means of the comparative legal method of investigation of certain provisions of Ukrainian legislation, the possibilities and limits of the use of cryptocurrency in contractual relations, in particular, contracts of purchase and sale are determined. The results of the study revealed that the cryptocurrency regime in Ukraine and in many countries is in a legal vacuum. Such a conclusion is based on the lack of clear legal clarification and consolidation of the concept and types of cryptocurrency in the relevant rules of the tax, banking, civil, and commercial law. In case of eliminating this gap, it is advisable to review the state policy on Bitcoin and its analogues. Practical implications. It is necessary and appropriate to introduce a corresponding license for cryptocurrency activities that can minimize the laundering of proceeds from crime or terrorism financing. It is suggested that eventually the relations concerning the digital currency will be regulated in Ukraine, but most likely, it will copy the experience of another state, which may have negative consequences. Relevance/originality. Analysis of a possible use of cryptocurrency in contracts of purchase and sale can become the basis for the development of the most promising directions of domestic civil law in contractual relations.
The research focuses on the assessment of the criminal turnover of crypto currency as the most sought-after product of the distributed ledger technology (blockchain). The subject of the research is crimes in which the virtual currency is either a means or an object of criminal assault. The research objectives were the search for criminological regularities in the commission of crypto crimes and the assessment of advantages and risks of the virtual currency turnover. The methods of comparative, criminological and statistical analysis made it possible to analyze the above risks through the prism of economic and constructive features of distributed ledger technology (DLT) and identify the most common ways of committing crimes, while the classification of methods of criminal use of the blockchain supported by examples of judicial practices defined prospective areas of the preventive activity. Based on the research findings it was concluded that the cooperation between countries in monitoring crypto crimes and development of a legislative basis for their prevention needs to be expanded.
The article deals with the certain aspects of the criminal law measures appliedto legal entities, the phenomenon of electronic legal entities (Decentralized Autonomous Organization or Decentralized Autonomous Corporation), the possibility of applying criminal law measures to electronic legal entities.
The aim of this article is to study the theoretical, methodological, and legal possibilities of application of certain types of legal responsibility to the relations, which are connected with cryptocurrency (bitcoin). Some types of liability in the field of cryptocurrency relations make the subject of the study. Methodology. The research is based on a comparison of legal regulation of the sphere of cryptocurrency in Ukraine and in foreign countries. Advantages and disadvantages of different modes of cryptocurrency turnover are determined: from direct prohibition to granting the status of the official payment system. It is made on the basis of the analysis of peculiarities of the circulation of virtual money in Australia, Germany, the Netherlands, New Zealand, Singapore, Indonesia, China, the Russian Federation, Bolivia, Ecuador, Thailand, Vietnam, the USA, Japan, Spain, and some other countries. On the basis of the comparative legal study of certain provisions of the civil, administrative, tort, and criminal legislation of Ukraine, the possibilities and limits of the application of certain types of legal responsibility to violations in the field of cryptocurrency are determined. The results of the comparative legal study have shown that, unlike most foreign countries, in Ukraine, there is no legislative consolidation of the legal status of the virtual currency. In this regard, today in the national legislation, there are no direct rules that would predict the occurrence of administrative, criminal or civil liability for the offenses in the field of cryptocurrency relations. Practical impact. Since guarantees of compulsory restoration or protection of violated law play an important role in the legal regulation of any social relations, the proper legislative regulation of public relations in the sphere of crypto currency circulation is an urgent problem today, including with the help of establishing liability for the offenses in this field. Correlation/Authenticity. Comparative and legal research of legal regulation of the sphere of crypto currency gives us a better understanding of the most promising directions of development of administrative, criminal, and civil liability in this field.
The article is concerned with legal regulation of Bitcoin in various countries of the world. At the present time Bitcoin gains a great popularity, but the authorities in various countries treat that novelty with inequality. What raises doubts is security of the system in question, but Bitcoin is easy to use, reliable, the system is open and not susceptible to counterfeiting of money. The article is based on report of the US Library of Congress Global Legal Research Center. The source base of this research has been formed during the author's study placement in the USA in February of 2014 on the delegation of the Scholar School of Comparative Law Research.