The article is devoted to the problems of qualification of various types of theft of cryptocurrency, theft of funds committed using cryptocurrency. The article deals with crimes related to the illegal sale of drugs for cryptocurrency and raises the question of the absence in the act of the offense under article 1741 of the Criminal code of the Russian Federation. The author studies the concepts of cryptocurrency and property within the framework of existing scientific opinions and analyzes the versatile judicial practice, which, in particular, tends to classify cryptocurrencies as types of property. The goals and objectives of the study are to determine the range of features and properties of the objects of crimes committed with the use of cryptocurrency, as well as committed against the cryptocurrency as an object of infringement. In the preparation of the article, mainly formal logical methods were used, as a result of which the author analyzes social and legal phenomena. The author concludes that the main feature of the evaluation of the object of crimes in sphere of circulation of cryptocurrency, is the presence of his property and cost characteristics, the possibility of determining the damage for the proper qualification of the offense. It is concluded that cryptocurrency may be the subject of corruption offenses on the basis of scientifically substantiated opinions about the presence of the paid nature of the benefit provided by the cryptocurrency. It is argued that the actions associated with the sale of narcotic drugs and psychotropic substances for cryptocurrency and subsequent actions to transfer cryptocurrency to Fiat money do not form part of the crime providing for liability for the legalization of proceeds from crime.
The use of citizens` and legal entities` personal information is crucial for the protection of human rights at the current stage of society and information technology development. On the one hand, a high-quality system of processing and using this information can increase the level of citizen participation in government-making processes and assist on creating a human-centric approach in public administration, when the state will have all the necessary information to serve citizens (providing of all administrative services online, use of analytics to improve infrastructure, etc.). On the other hand, misuse and unauthorized access to personal data can lead to violations of citizens' rights, corruption and excessive bureaucracy in administrative procedures.At the same time, approaches to the protection of personal data should be not formal, but purely practical. The state policy should be based on the solution of real problems, which often require a complete revision of the systematic approaches, in this case the infrastructure of the state registers.Modern information technologies make it possible to implement large-scale changes in the business processes of collecting, storing and processing personal data of citizens. Moreover, such approaches make it possible to reduce bureaucratic burdens and minimize corruption risks.Distributed registry technology is a popular solution for improving the performance of government processes and enhancing eGovernment in the country. However, its application requires a proper assessment of the problem and its origins, as well as the outcomes that should be achieved
Smart contract technology is reshaping conventional industry and business processes. Being embedded in blockchains, smart contracts enable the contractual terms of an agreement to be enforced automatically without the intervention of a trusted third party. As a result, smart contracts can cut down administration and save services costs, improve the efficiency of business processes and reduce the risks. Although smart contracts are promising to drive the new wave of innovation in business processes, there are a number of challenges to be tackled.This paper presents a survey on smart contracts. We first introduce blockchains and smart contracts. We then present the challenges in smart contracts as well as recent technical advances. We also compare typical smart contract platforms and give a categorization of smart contract applications along with some representative examples.
Elena B. Zavyalova, Ekaterina I. Shumskaia, Alexandra I. Shumskaia
Introduction. Smart contracts have become demanded agreements in the modern market with the development of crypto-currency due to their ability to provide and guarantee enforcement. To date they are performed automatically using blockchain technology. Smart contracts are the subject of debate in many countries, primarily because issues have arisen in their legal enactment in the field of regulation of digital assets and the legal recognition of blockchain technology itself, which determined the purpose of this scientific research. For the purpose of a deeper understanding of the essence of this type of agreements, a historical method has been applied in the work on the features of the formation of smart contracts. To identify key differences, a formal legal and comparative analysis of smart contracts with classical contracts in electronic form was carried out. The areas of application of smart contracts in the world and in Russia, such as banking, healthcare, insurance and public services, were also studied. Materials and methods. The methodological basis of the study was made up of the following general scientific and special methods of cognition of legal phenomena and processes, including systemic, historical, formal legal, comparative and analytical approaches. Results. An assessment is made of such contracts from the point of view of the existing civil law of the Russian Federation and further directions for study and development are proposed, including the improvement of the regulatory and institutional environment to maintain legal certainty. Discussion and conclusion. The existing legal regulation does not prohibit the use of smart contracts in the business practices of companies and individuals. But the simplicity of the transaction implementation algorithm built on the blockchain still requires some legal support.
Prosecutor's Office of Moscow Region, Madina M. Dolgieva
ПРОТИВОДЕЙСТВИЕ ЛЕГАЛИЗАЦИИ ПРЕСТУПНЫХ ДОХОДОВ ПРИ ИСПОЛЬЗОВАНИИ КРИПТОВАЛЮТЫРассматриваются рекомендации Группы по разработке финансовых мер борьбы с отмыванием денег и финансированием терроризма, которая с 2018 г. приступила к разработке обязательных правил регулирования криптовалютных бирж и обменников.На основе исследованных рекомендаций обосновывается вывод о необходимости включения в уголовный закон нормы об ответственности за неправомерный оборот криптовалюты, вследствие чего нормы
Abstract Since the emergence of cyberspace there have been different legal principles evolving, such as functional equivalence and technology-neutrality, with the aim to ease the regulator´s challenge of coping with the new paradigm of virtual, digital and electronic. Currently our societies have reached the doorstep of another similar disruption: infrastructures decentralized on the basis of blockchain and distributed ledger technology, or so-called cryptoeconomics. It is time to turn to cyberspace-related principles for inspiration on how to solve similar concerns, such as applying existing regulation(s) to new technological disruption. This article looks at different understandings of the functional equivalence principle, its shortcomings and the guidance it provides to regulators and courts in dealing with the challenges related to technological innovation including that of cryptoeconomics.
Introduction: the paper is devoted to a new phenomenon in business activity in the conditions of IT development that contribute to the creation of secure contractual relations on the Internet on the basis of transactions executed through smart contracts. The author notes that the need for amendments that could fill the loopholes in the current legislation is obvious. And, first of all, it concerns Blockchain technology – the algorithm that mediates the safe development, conclusion and execution of smart contracts. Blockchain technology is considered in the paper as one of the safest means for concluding and executing smart contracts. The author argues that the study of the concept, legal nature and essence of smart contracts is relevant in the light of spreading their share in the total array of transactions in the world economy in conjunction with the changing domestic legislation governing the relevant sphere, as well as the international integration processes affecting the intensification of foreign economic activity of the Russian Federation. The smart contract concepts formulated by the Russian legislator in the process of upgrading the array of statutory regulation under conditions of economy digitalization are studied and compared. The features of conclusion and protection of the smart contract in the civil legislation of the Russian Federation are analyzed. In order to fully articulate the concept of the smart contract, reflecting its essence, functional purpose and legal nature, it is proposed to create a special law that would focus on the conclusion and implementation of “the smart contract” and the specification of the general norms of the civil code. At the same time, the norms of other special laws would supplement and correct the provisions fixed by this act depending on the sphere of managing and the legal regulation branch. The concept of the smart contract is formulated; its value for economic and contractual activity, and also the advantages and disadvantages of its application are established. The possible classifications of smart contracts are given.
Digitalization changes all kind of sectors of the economy—in particular, financial industry, which is probably one of the first to undergo fundamental changes. As money and financial transactions are immaterial, it is evident that financial industry has been one of the first economic sectors to be digitalized. Digitalization of the financial industry started already at the beginning of the 1980s, when large banking networks were introduced across the globe. With the rise of the Internet, online banking and all kinds of Internet-based services that allow a direct contact with clients and real-time transactions were established. The next step is now ahead, based upon the new technology of blockchain and on the use of artificial intelligence. It is obvious that the so-called fintech are already challenging the traditional financial industry; however, the notion of fintech remains opaque and is used to describe different phenomena. From the international private law perspective, it is of particular interest how traditional paradigms, such as location of a transaction (loci actus), can change. While contracts concluded by using fintechs will not raise specific choice-of-law problems as the principles of law applicable to contracts would not change, the situation is different for proprietary effects of transactions in securities. Even though securities were immaterialized long before the existence of fintechs or blockchain, the use of decentralized networks based on distributed ledger technology (DLT) raises new problems as to the assessment of the location of the transaction. The article discusses different approaches to solve the location problem, with specific regard of DLT. The issue discussed is embedded in a more general debate about the chances and limits to regulate a decentralized DLT; thus, conflict of laws for securities transactions is just a part of the overall problem. I will show that there are some important parallels to the intellectual property law that have been disregarded in the discussion so far. However, this approach also reveals some flaws, so that it will be the lex fori, in the end, that should govern the proprietary effects of transactions on a decentralized DLT network. Concerning the legal base of analysis, I have to concentrate—unfortunately—upon national law (in this case, German law) as European regulations such as the Rome Regulations do not deal with proprietary effects of securities transactions.
The present chapter will look at the possible application of smart contracts in the intellectual property arena in general, but it will specifically discuss mostly copyright solutions, although a few uses apply to different areas of protection. This presents a few challenges, at the time of writing many of the proposals that will be discussed have not yet been implemented, or are in a prototype level, and as such we may have to assume their viability based on nothing other than a few examples that have not been fully tested. Similarly, legal discussions about the blockchain and smart contracts tend to be surrounded by considerable hype, often fuelled by commercial interests, and it is often difficult to separate facts from sales pitches. This is why this work will try to take a more sceptical approach to the phenomenon.
Abstract Smart contracts are software codes based on the Blockchain technology which are involved in the field of information technology. The Blockchain smart contract is still in the contractual scope in nature, although its origin and automatic performance functions are different from existing contracts, but it can be identified as a typical unnamed contract. Therefore, at the legal level, a smart contract is a new form of contract that can automatically and automatically perform all or part of the contract. While discussing the technical aspects of smart contracts, we cannot ignore the relevant issues at the legal level. Smart contracts are developments and innovations in the form of traditional contracts. Smart contracts exist in electronic form and automatically fulfill contracts through software that is accurately encoded on the Blockchain. How to create smart contracts according to law and evaluate the legal effect of smart contracts are the main research issue of this paper.
Elena Kirillova, Богдан Варвара Владимировна, Igor B. Lagutin, Evgeniy Dmitrievich Gorevoy
This article using critical analysis discusses the legal status of smart contracts, their features and characteristics, and the possibility of introducing this category into the legal field. The main goal of the study is to determine the legal status of smart contracts. The study concludes that a smart contract is a program code based on blockchain technology, which, by legal characteristics, is a legally significant message recorded in a language (artificial language) and sealed with an electronic digital signature of each of the parties (or certified with a special key). It is proved that the multilateral interactions implemented through smart contracts can reduce the costs of operations and control them, increase the speed of operations and reduce the risks associated with dishonest actions of the parties, minimize or completely exclude intermediaries from the transaction; therefore, legislation should provide for the possibility of using smart contracts along with existing contracts.
The author examines the impact of blockchain and smart contracts on the legal profession. After all, the lawyer is entitled to draft smart contracts. For a few years now, in information technology, the lawyer has promoted the writing of so-called agile contracts in connection with projects run by “agileȁ methods. However, the smart contract, whether described as a contract or simple algorithm, challenges the lawyer by its philosophy (“code is law”) and by its writers who are no longer jurists but developers. He discusses whether this technology will be “killing off” the legal profession. Before over-hastily assuming this apocalyptic demise of the lawyer, the author suggests to think about the role and the status of the lawyer in his general mission of advice and defense, and considers whether information technology can be a substitute for the lawyer or simply a new tool that could be used.
Larry A. DiMatteo, Michel Cannarsa, Cristina Poncibò
Smart contracts have been a topic of interest to lawyers for some time now. The question regularly arises as to whether a smart contract can also constitute a valid contract on its own. This article examines this question, focusing on the basic principles of Swiss contract law.
The technology that makes smart contracts possible was developed with a view to enabling transactions to be made end-to-end without the intervention of third parties, intermediaries, adjudicators or courts. In this sense, it achieves in principle complete freedom of interaction. Whether this is the same thing as freedom of contract, however, remains to be seen. It is not yet clear, for example, which smart contracts will be legally enforceable, either because the parties do not want them to be, and/or because the courts do not recognise them as being so. What seems inevitable at this stage in the development of smart contract technology is that conventional contract law in its current form is unlikely to be the most effective way of adjudicating smart contract disputes. One reason for this is that securing performance will be far less of a problem under smart contracts than it is in relation to conventional contracts: the automated nature of the former means that actions are far more likely to be executed than those promised in the traditional way, albeit that their results might not accord with the parties’ expectations. Any issues are therefore far more likely to arise (or at least to be brought to a court’s attention) after a transaction has occurred. Automated execution means that parties are free to determine the contents of their agreements, and that machines will abide by those agreed instructions. The way in which smart contracts operate, therefore, means that any adjudication of them is likely to need to emphasise restorative rather than enforcement remedies. The extent to which the law chooses to do this will effectively determine how free smart technology users are to make legally recognised contracts.
The article investigates by etymological and legal analysis the origin of the institution of obligations and risk management, for centuries in the process of formation of Russian law.
Os smarts contracts são, em termos bastante gerais, protocolos informáticos que permitem que um dispositivo execute as prestações de um contrato de forma autônoma, logo, sem a necessidade de intervenção humana. A substituição da ação humana por um processo – conjunto de protocolos – que viabiliza (a) a automação de operações, (b) a materialização automática das prestações nas transações e (c) a utilização de outras tecnologias, as quais permitem a verificação do clausulado e da identidade dos sujeitos vinculados à transação resulta em elevada economia de custos. Ademais, as expectativas das partes para a satisfação de seus interesses negociais, tal como estabelecido no contrato, acabam sendo amplamente protegidas. Rapidez, previsibilidade e automação permeiam o exercício da autonomia privada, facilitando a efetiva autotutela. Não obstante os evidentes benefícios, tal figura apresenta limitações e desvantagens, trazendo consigo possíveis problemas. Este trabalho explora brevemente o fenômeno dos smart contracts, reflete sobre seu ecossistema particular e, a seguir, aborda importantes questões jurídicas que acompanham os smart contracts.
In recent decades land registration systems operating in Europe and worldwide have been subject to modernisation processes consisting in implementation of information and communication technologies. Such reforms have gradually led to facilitating access to land information, improving effectiveness of land registration proceedings and even introducing possibilities to dispose of the ownership of land electronically by developing electronic conveyancing mechanisms. Another innovative concept much discussed nowadays is the application of blockchain technology in the land registration sector. This solution is currently being tested in a number of countries.Distributed ledger technology underlying blockchain is expected to revolutionise land registration by offering a secure architecture to store land transactions with the use of cryptographic protocol. This shall bring advantages of increased trust and processing efficiency as well as reduction of costs. However, the above idea raises concerns given that, under the assumptions of the “original” blockchain model, transactions are irreversible and are carried out without intermediaries, which means the lack of any external control and independent verification of the transactions to be recorded.The article examines potential benefits and risks of automatisation of land transactions as well as practical experiences of selected countries in implementing blockchain in the area of land registration. On this basis, an assessment will be made as to whether blockchain-based registration could indeed replace the existing methodology of registering rights to land.
Among substantial advancements challenging contemporary contract law special attention is given to autonomous, cryptographic solutions based on decentralised infrastructure provided by blockchain technology, intended to execute transactions automatically, designated as smart contracts. The need for comprehensive research on legal implications of practical implementation of this technological innovation is triggered particularly by the prognostications declaring it a valid alternative to hitherto contract law framework that is expected to be ultimately replaced by algorithmic mechanisms underpinning smart contracts.A relevant assessment of the impact smart contracts are presumed to have on the contract law domain requires a thorough analysis of their juridical status. The specificity of the category of smart contracts raises doubts whether they comply with the definition criteria inherent to contract law terminology. Additionally, it is of material importance to determine the function smart contracts can perform in the sphere of contractual practice and to confront it with the role and axiology of contract law.The article aims at analysing the peculiarities of smart contracts from the perspective of the Polish private law system with account being also taken of current development tendencies concerning the concept of contract.