FUNDAMENTALS OF THE CIVIL LAW THEORY OF DIGITAL FINANCIAL ASSETS

Abstract

Introduction: providing digital civil circulation with new digital resources, which include digital financial assets (DFA), is the key task facing the state that strives to build an effective digital economy. This should be done through the creation of an appropriate regulatory platform while taking into account the current civil legislation that has proved effective and considering the architecture of the Russian economy and information infrastructure. The harmonization of traditional civil legislation and the newly created digital law is the primary goal of digitalization of the regulatory platform. This goal is determined solely by the civil law nature of digital financial assets, although the term, it would seem, has nothing to do with civil law. Purpose: to develop the foundations of the civil law theory of digital financial assets, which is a task of particular importance for the development of Russian civil science. Methods: dialectical ideological basis; special legal methods of cognition, with the dogmatic method employed as the major one; historical and legal method, which allowed tracing the genesis of the modern legislative concept of DFA; methods and techniques of interpretation, which were used to analyze individual articles of the DFA Law; legal modeling, used when constructing relationships complicated by DFA. Results: the paper consistently examines the issues directly related to the development of the theory in question. These include: the evolution of the Russian and foreign civil law doctrine of DFA; the genesis of the modern legislative concept of DFA (review of the main historical stages of the rule-making); commentary on the main provisions of the DFA Law; analysis of judicial practice under the DFA Law. Conclusions: it is essential that digital novels comply with the National Program ‘Digital Economy of the Russian Federation’; there is no necessary connection between the norms of the DFA Law and the rules of civil legislation (such ‘autonomy’ of the DFA Law should be recognized as inappropriate); the legal regulation of DFA is characterized by complexity and opacity, which casts doubt on the effectiveness of the legal norms in terms of their applicability in the real sector of the digital economy; the analysis of the norms of the DFA Law revealed the collective nature of ‘DFA’ as a legal category, which contradicts the recognition by the Civil Code of the Russian Federation of digital rights as an independent object; the legal regime of DFA has a number of shortcomings (including their functional differentiation into right-certifying and right-forming; the presence of an intermediary with the status of a registry holder in the relevant relations; weak delineation between DFA and related legal phenomena, etc.); the elaboration of norms on DFA has been accompanied by numerous (in our opinion, justified) critical comments from the Presidential Council for Codification and Improvement of Civil Legislation concerning the draft DFA Law; as showed the analysis of court practice of commercial proceedings, there are no disputes around DFA, which makes it possible to doubt the viability of the relevant norms of law.