In the Russian Federation, from January 01, 2021, Federal Law No. 31.07.2020-FZ of July 259, XNUMX ""(hereinafter - the Law). This law significantly changes the existing one (see. ) the legal regime for the use of cryptocurrencies and blockchain in the Russian Federation.
Consider the basic concepts defined by this Law:
Distributed ledger
According to paragraph 7 of Art. 1 Law:
For the purposes of this Federal Law, a distributed ledger is understood as a set of databases, the identity of the information contained in which is ensured on the basis of established algorithms (algorithm).
This definition is in no way a definition of a distributed ledger in the traditional sense, formally any set of databases in which replication is carried out and or backup is performed periodically. It should be borne in mind that any databases, as well as software in general, work on the basis of established algorithms. That is, formally, any system in which several databases synchronize data from the point of view of the Law is a “distributed ledger”. From January 01.01.2021, XNUMX, any banking information system will formally be considered a “distributed ledger”.
Of course, the real definition of a distributed ledger is quite different.
Yes, the standard , gives the following definition of blockchain and distributed ledger:
Blockchain is a distributed registry with confirmed blocks organized in a sequentially added chain using cryptographic links.
Blockchains are organized in such a way that they do not allow changes to records and represent completed certain immutable records in the ledger.A distributed registry is a registry (of records) that is distributed in a set of distributed nodes (or network nodes, servers) and synchronized between them using a consensus mechanism. The distributed registry is designed in such a way as to: prevent changes to records (in the registry); provide the ability to add, but not change records; contain verified and confirmed transactions.
It seems that the erroneous definition of a distributed registry in this Law is not given by chance, but intentionally, as evidenced by the requirements set out in the law for what is designated as an “information system”, which also includes “information systems based on a distributed registry”. These requirements are such that in this case we are clearly not talking about a distributed ledger in the generally accepted meaning of this term.
Digital financial assets
According to paragraph 2 of Art. 1 Law:
Digital financial assets are digital rights, including monetary claims, the possibility of exercising rights under equity securities, the right to participate in the capital of a non-public joint-stock company, the right to demand the transfer of equity securities, which are provided for by the decision to issue digital financial assets in the manner established by this Federal Law, issue, accounting and circulation of which is possible only by making (changing) records in an information system based on a distributed registry, as well as in other information systems.
The definition of “digital right” is contained in :
- Digital rights are recognized as such in the law, obligations and other rights, the content and conditions for the exercise of which are determined in accordance with the rules of the information system that meets the criteria established by law. The exercise, disposal, including transfer, pledge, encumbrance of a digital right in other ways or restriction of the disposal of a digital right is possible only in the information system without recourse to a third party.
- Unless otherwise provided by law, the owner of a digital right is a person who, in accordance with the rules of the information system, has the opportunity to dispose of this right. In cases and on the grounds provided for by law, another person is recognized as the owner of a digital right.
- The transfer of a digital right on the basis of a transaction does not require the consent of the person liable under such digital right.
Since DFAs are named in the law as digital rights, it should be assumed that they are subject to the provisions of Art. 141-1 of the Civil Code of the Russian Federation.
However, not all digital rights are legally defined as digital financial assets, such as the “utility digital rights” defined in Federal Law No. 02.08.2019-FZ of August 259, 20.07.2020 (as amended on July XNUMX, XNUMX) "On Attracting Investments Using Investment Platforms and on Amendments to Certain Legislative Acts of the Russian Federation" does not apply to CFA. DFA includes only four types of digital rights:
- money claims,
- the possibility of exercising rights under issuance securities,
- the right to participate in the capital of a non-public joint-stock company,
- the right to demand the transfer of issue-grade securities
Cash claims are claims for the transfer of money, because rubles of the Russian Federation or foreign currency. By the way, cryptocurrencies such as bitcoin and ether are not money.
Issuable securities according to Federal Law No. 22.04.1996-FZ of April 39, 31.07.2020 (as amended on July XNUMX, XNUMX) "On the Securities Market" these are any securities that are simultaneously characterized by the following features:
- fix the totality of property and non-property rights subject to certification, assignment and unconditional exercise in compliance with the form and procedure established by this Federal Law;
- are placed by issues or additional issues;
- have equal scope and terms of exercising rights within one issue, regardless of the time of acquisition of securities;
Russian legislation includes stocks, bonds, issuer options and Russian depository receipts among equity securities.
It should also be canceled that the CFA in the Russian Federation includes only the right to participate in the capital of a non-public joint-stock company, but not the right to participate in other business companies, in particular, they do not include the right to participate in a limited liability company registered in the Russian Federation. Here it should be taken into account that corporations or companies registered in other jurisdictions may not exactly correspond to the definitions of business entities established by the legislation of the Russian Federation.
Digital currency
According to paragraph 3 of Art. 1 Law:
Digital currency is a set of electronic data (digital code or designation) contained in the information system that are offered and (or) can be accepted as a means of payment that is not the monetary unit of the Russian Federation, the monetary unit of a foreign state and (or) international monetary or unit of account, and (or) as an investment and in respect of which there is no person liable to each owner of such electronic data, with the exception of the operator and (or) nodes of the information system, which are only obliged to ensure compliance with the procedure for issuing these electronic data and implementing in respect of them actions to make (change) entries in such an information system by its rules.
It is not entirely clear what was meant by “international monetary or accounting unit”, again, purely formally, such can be considered or bitcoin, and thus, they will not be subject to the restrictions provided for by the legislation of the Russian Federation on digital currencies. But we would still assume that in practice, Ripple or Bitcoin will be considered precisely as digital currencies.
The clause “for which there is no person liable to each owner of such electronic data” suggests that we are talking about classic cryptocurrencies like bitcoin or ether, which are created centrally and do not mean the obligations of any person.
If such a means of payment means a monetary obligation of a person, which is the case in some stablecoins, then the circulation of such instruments in the Russian Federation will be illegal outside the information systems approved by the Bank of Russia or not through registered exchange operators, due to the fact that such instruments fall under the definition CFA.
Residents of the Russian Federation, according to the law, have the right to have, buy and sell digital currency, borrow and lend it, donate it, inherit it, but do not have the right to use it to pay for goods, works and services (clause 5 of article 14 of the Law) :
Legal entities whose personal law is Russian law, branches, representative offices and other separate subdivisions of international organizations and foreign legal entities, companies and other corporate entities with civil legal capacity, established on the territory of the Russian Federation, individuals actually located in the Russian Federation for at least 183 days within 12 consecutive months, is not entitled to accept digital currency as a consideration for goods transferred by them (them), work performed by them (them), services rendered by them (them), or in any other way that allows one to assume payment in digital currency for goods ( works, services).
That is, a resident of the Russian Federation can buy a digital currency, say, for dollars from a non-resident, and can sell it for rubles to a resident. At the same time, the used information system in which this occurs may not meet the requirements set forth in the law for the information system in which DFAs are issued in accordance with this Law.
But a resident of the Russian Federation cannot accept digital currency as payment or pay with it for goods, works, services.
This is similar to the regime for the use of foreign currency in the Russian Federation, although it should be emphasized that the CB is not a foreign currency, and the rules of foreign currency laws are not directly applicable to the CB. Residents of the Russian Federation also have the right to own, buy and sell foreign currency. But it is not allowed to use, say, US dollars for payments.
The law does not directly speak about the possibility of introducing digital currency into the authorized capital of a Russian economic company. In the Russian Federation, this practice has already taken place, bitcoin was contributed to the authorized capital of the Artel company, this was formalized by the transfer of access to an electronic wallet (see. )
Since the contribution to the authorized capital is not a transaction for the sale of works or services, we believe that this Law does not prohibit such transactions in the future.
As we pointed out earlier (cf. ) before the entry into force of the Law in the Russian Federation, there were no restrictions on operations with cryptocurrency, including its exchange for goods, works, services. And, thus, the “digital currency” received by a resident of the Russian Federation when selling his goods, works, services in exchange for digital currency before the entry into force of the Law, after its entry into force, should be considered legally acquired property.
Judicial protection of owners of digital currencies
In paragraph 6 of Art. 14 of the Law contains the following provision:
The claims of the persons referred to in paragraph 5 of this Article (those. residents of the Russian Federation - authors) associated with the possession of digital currency are subject to judicial protection only if they inform about the facts of possession of digital currency and the performance of civil law transactions and (or) operations with digital currency in the manner established by the legislation of the Russian Federation on taxes and fees.
Thus, the Law establishes that for residents of the Russian Federation, the rights associated with the possession of digital currency are subject to judicial protection only if information is provided to the tax office, and there is no such restriction for non-residents.
Those. if a person lives in the territory of the Russian Federation for less than 183 days within 12 consecutive months, and he lent digital currency to another person, then he can recover the loan amount in a Russian court regardless of whether he informed the tax office about the transaction, but if he is a resident RF, then the acceptance or satisfaction of a claim for the return of a loan within the meaning of this article must be refused if it is established that the plaintiff did not inform the tax authority about the loan transaction.
This, of course, is an unconstitutional norm, and it should not be applied by the courts in practice.
Part 1 Art. The Constitution of the Russian Federation establishes that everyone is equal before the law and the courts, and non-residents should not have more judicial protection than residents.
But, even if such a restriction were introduced for non-residents, it would still be unconstitutional, because. Part 1 Art. The Constitution of the Russian Federation guarantees everyone judicial protection of his rights.
It should also be taken into account that The European Convention for the Protection of Human Rights, which is in force in the Russian Federation, guarantees everyone the right to a trial in the event of a dispute over civil (civil) rights and obligations.
Information system and information system operator.
P. 9 Art. 1 of the Law says:
The terms "information system" and "information system operator" are used in this Federal Law in the meanings defined by Federal Law No. 27-FZ of July 2006, 149 "On Information, Information Technologies and Information Protection".
contains the following definition of an information system (clause 3, article 2) and an information system operator (clause 12, article 3):
information system - a set of information contained in databases and information technologies and technical means that ensure its processing
information system operator - a citizen or legal entity engaged in the operation of an information system, including the processing of information contained in its databases.
The law establishes a number of requirements for the information system in which records can be made with the help of which the circulation of digital financial assets is recorded. These requirements are such that technically such an information system can in no way be a blockchain or a distributed ledger in the generally accepted sense of these terms.
In particular, we are talking about the fact that such an information system (hereinafter referred to as IS) must have an “information system operator”.
The decision to issue a DFA is possible only with the placement of this decision on the website of the IP operator. In other words, if the operator refuses to place such a decision on its website, then the release of the DFA under the Law cannot be made.
Only a Russian legal entity can be an IP operator, and only after it is included by the Bank of Russia in the “register of information system operators” (clause 1, article 5 of the Law). When an operator is excluded from the register, operations with DFA in IS are suspended (clause 10, article 7 of the Law).
The operator of the IS in which the IS is issued is obliged to ensure the possibility of restoring the access of the owner of digital financial assets to the records of the information system at the request of the owner of digital financial assets, if such access has been lost by him (clause 1, clause 1, article 6 of the Law). It does not specify what is meant by “access”, whether it means read access or write access, however, from the meaning of paragraph 2 of Art. 6, we can assume that the operator should still have full control over the user's rights:
The operator of the information system in which the issuance of digital financial assets is carried out is obliged to ensure the entry (change) of records on digital financial assets on the basis of a judicial act that has entered into legal force, an executive document, including a decision of a bailiff, acts of other bodies and officials in the exercise of their functions provided for by the legislation of the Russian Federation, or issued in the manner prescribed by law, a certificate of the right to inheritance, providing for the transfer of digital financial assets of a certain type in the order of universal succession, no later than the business day following the day the relevant request is received by such an operator information system
In accordance with paragraph 7 of Art. 6 of the Law:
The consequence of the acquisition of digital financial assets that meet the criteria determined by the Bank of Russia in accordance with Part 9 of Article 4 of this Federal Law by a person who is not a qualified investor, including if the said person is unlawfully recognized as a qualified investor, is the imposition on the operator of the information system, in which the issue of such digital financial assets is carried out, the obligation, at the request of the specified person who has acquired digital financial assets, to acquire these digital financial assets from him at his own expense and reimburse him for all the expenses incurred by him.
In practice, this means that in transactions with DFA, the acquisition of which can only be carried out by a person who is a qualified investor, the transfer of DFA will be carried out only with the approval of the IP operator.
Scope of the legislation of the Russian Federation on CFA.
In accordance with paragraph 5 of Art. 1 of the Law:
Russian law shall apply to legal relations arising from the issuance, accounting and circulation of digital financial assets in accordance with this Federal Law, including with the participation of foreign persons.
If we approach this wording purely formally, then Russian law applies only to those financial assets that are issued, the accounting and circulation of which occur exactly as described in the Law. If they do not occur in this way, then Russian law does not apply to them at all. Even if all participants in the transaction are residents of the Russian Federation, all servers are in the Russian Federation, the subject of the transaction is a share or monetary obligations of a Russian company, but the IP does not work as described in the law, then it is outside the scope of Russian law. The conclusion is absolutely logical, but strange. Perhaps the authors of the law wanted to say something else, but they formulated it the way they formulated it.
Another possible interpretation is that Russian law applies to any DFA described in the law, even for foreign persons. In other words, if the subject of the transaction falls within the definition of a CFA in the law, even if the parties to the transaction are foreign persons, Russian law should apply to the transaction. In other words, with this interpretation, Russian law applies to the activities of all stock exchanges in the world that trade bonds and other instruments falling under the definition of CFA under Russian law. We believe that such an interpretation is still illegal, since we cannot assume that this Law can regulate the activities of, say, the Tokyo or London Stock Exchange if there are transactions with electronic bonds and other assets falling under the concept of CFA.
In practice, we assume that a ban will be implemented on the access of residents of the Russian Federation to any “information systems” that do not comply with the requirements of the Law, i.e. to any not approved by the Bank of Russia, including to foreign exchanges and systems based on the blockchain, except through a “digital financial asset exchange operator” (see paragraph 1 of Article 10 of the Law).
Digital Financial Asset Exchange Operators
According to Part 1 of Art. 10 of the Law (highlighting - authors):
Purchase and sale transactions of digital financial assets, other transactions related to digital financial assets, including the exchange of digital financial assets of one type for digital financial assets of another type or for digital rights provided for by law, including transactions with digital financial assets issued in information systems organized in accordance with foreign law, as well as transactions with digital rights that simultaneously include digital financial assets and other digital rights, are made through digital financial asset exchange operator, which ensures the conclusion of transactions with digital financial assets by collecting and comparing divergent requests for such transactions or by participating at its own expense in a transaction with digital financial assets as a party to such a transaction in the interests of third parties.
This is where the blockchain begins.
As we have already established above, according to the Law in the Russian Federation, it is impossible to issue DFA using the blockchain, according to the Law, any information system, including the “distributed ledger”, must be strictly centralized.
However, this article entitles residents of the Russian Federation to make transactions with digital financial assets issued in information systems organized in accordance with foreign law (that is, in information systems that no longer have to comply with the requirements of Russian law), if such transactions are provided by a digital financial asset exchange operator (hereinafter - OOCFA).
OOCFA can ensure the conclusion of such transactions in two ways specified in the Law:
1) By collecting and comparing divergent orders for such transactions.
2) By participating at its own expense in a transaction with digital financial assets as a party to such a transaction in the interests of third parties.
This is not explicitly stated in the Law, however, it seems that OOCFA can sell and buy digital currencies for money (in transactions with residents of the Russian Federation - for rubles, with non-residents for foreign currency).
The same person may be the operator of the exchange of digital financial assets and the operator of the information system in which the issuance and circulation of digital financial assets is carried out.
OOCFA according to this law turns out to be a kind of analogue of a crypto-exchange. The Bank of Russia will maintain a “register of operators for the exchange of digital financial assets”, and only persons included in the register will be able to carry out such activities.
OOCFA in the Russian Federation can thus act as a gateway between “foreign”, decentralized systems (it seems to us that the ), and the financial system of the Russian Federation. Just like on , user accounts in the OCFA can reflect the rights to assets issued in decentralized systems, and they can even be transferred from one user's account to another user's account, as well as bought and sold for money. It is impossible to directly buy CFA for CV in the Russian Federation, but OGCF can provide an opportunity to sell CV for money, and buy CFA for the same money.
In other words, transactions with DFAs issued in centralized “foreign” systems can be carried out in a centralized IS, in particular, they can be received from foreign counterparties from decentralized systems, or alienated to foreign counterparties in the output to a decentralized system.
For example: OOCFA can provide services to residents of the Russian Federation for the purchase of a certain type of DFA issued on the Ethereum blockchain. The acquired asset in the Ethereum system is located at the address of the OCFA (it follows from the provisions of the Law that the OCFA can do this), and in the information system of which the OCFA acts as the operator, this asset will be reflected in the account of a resident of the Russian Federation. This even somewhat simplifies the work with such assets for a resident of the Russian Federation, if it is more usual for him to work with centralized systems that are accessed using a login and password than with decentralized systems based on cryptographic keys, the loss of which, for example, does not imply the possibility access recovery.
A resident of the Russian Federation, who has DFAs on his account with the DFA, can sell or exchange these DFAs with the help of DFA, and the other party to the transaction can be either a resident with an account with the same DFA or a non-resident using a decentralized “foreign” system.
Examples of digital assets.
Shares / shares of the company on the blockchain.
The world's first corporation whose shares were legally denominated in tokens on the Ethereum blockchain was registered in 2016 in the Republic of the Marshall Islands . In Corporations have the following provisions:
Corporation shares are represented by tokens issued electronically in a smart contract embedded at the address on the Ethereum blockchain.
The transfer of shares of a corporation can only be in the form of a transfer of tokens representing the shares in the specified smart contract. No other form of transfer of shares shall be considered valid.
In the case of CoinOffering Ltd. such rules were established by the charter of the corporation itself, using liberal jurisdiction. For more details, see
Currently, there are jurisdictions in which the law expressly provides for the possibility of maintaining a register of shares/shareholders on the blockchain, in particular, the US states of Delaware (see below). and Wyoming (cf. )
Now there are projects developing platforms for issuing electronic shares on the blockchain using the laws of these states, for example,
The new Law opens up opportunities for creating similar structures in the Russian Federation. It can also be hybrid structures in the form of a foreign company, for example, in the United States, which has issued tokenized shares on a decentralized blockchain, and which has a subsidiary in the Russian Federation, and these tokenized shares can be purchased (and sold) by residents of the Russian Federation through a Russian digital exchange operator financial assets in accordance with the new Law.
Electronic bills.
The first type of CFA that the Law refers to is “monetary claims”.
The most convenient and universal type of monetary claims that can be transferred from one person to another is . A promissory note is generally a very convenient and well-thought-out settlement tool, moreover, it can be said that it is ancient, and a lot of practice has been gained on it. It would be very interesting to implement the circulation of bills on the blockchain, especially since the concept of CFA in the Law immediately hints at this.
However, Art. 4 sets:
A bill of exchange and a promissory note must be drawn up only on paper (hard copy)
Is it possible at the same time to put into practice “digital rights, including monetary claims” referred to in paragraph 2 of Art. 1 Law in the form of tokens on the blockchain?
We believe this is possible based on the following:
In the Russian Federation operates .
Art. 3 of this Convention establishes:
The form in which obligations under a bill of exchange or promissory note are accepted is determined by the law of the country in whose territory these obligations were signed.
That is, Art. 4 tbsp. 4 must be applied subject to the provisions of Art. 3 .
If the obligations under the bill were signed on the territory of the Russian Federation, then such signing must be executed only on paper, if the obligations under the bill were signed in a place where bills of exchange in electronic form are not prohibited, but such a bill, by virtue of the provisions even being on the territory of the Russian Federation and / or in the possession of a resident of the Russian Federation will be valid. To comply with the requirements of the Law, again, a hybrid design is possible, in which a bill issued in accordance with foreign law can be considered in the Russian Federation as a CFA (monetary claim) and acquired / alienated through a CFA exchange operator by residents of the Russian Federation, even if formally not considered promissory note under Russian law (subject to the provisions of Article 4 )
For example, the issuance of such electronic bills in accordance with the rules of English law is possible on the platform (cm. ). The place of issue of a bill and payment on a bill may be in the UK, however, such DFAs can be acquired and alienated by Russian residents through an operator for the exchange of digital financial assets, and their circulation in a centralized information system is possible, the operator of which is a resident of the Russian Federation in accordance with the provisions of the Law.
Conclusion.
In general, the law introduces significant restrictions on the use of digital currencies compared to the current situation in the Russian Federation. At the same time, it opens up interesting opportunities for working with “digital financial assets” (DFA), which, however, require an appropriate approach on the part of information system operators and digital financial asset exchange operators registered by the Bank of Russia.
Preprint.
Authors: ,
Literature, links, sources:
- Sazhenov A.V. Cryptocurrencies: dematerialization of the category of things in civil law. Law. 2018, 9, 115.
- Tolkachev A.Yu., Zhuzhzhalov M.B. Cryptocurrency as property - analysis of the current legal status. Bulletin of economic justice of the Russian Federation. 2018, 9, 114-116.
- Efimova L.G. Cryptocurrencies as an object of civil law. Economy and law. 2019, 4, 17-25.
Source: habr.com