North Caucasus Legal Vestnik

Abstract

IntroductionIntroduction. The change in the technological paradigm, referred to in the literature as the fourth industrial revolution, led to the transformation of the information circulation environment and the emergence of special intangible objects – digital rights. In response to a request for legal regulation, the Russian legislator has developed his own approach to regulating digital financial assets, which is markedly at odds with the tokenization model widely used abroad.The purpose of the study is to identify the features of the Russian model of regulation of digital financial assets, which is being formed along the path of point-based tokenization of a limited range of property rights, as well as to assess its impact on civil law turnover and foreign economic transactions. An additional goal is to develop proposals to overcome regulatory conflicts related to the dualistic nature of digital financial assets and their "falling out" from the traditional design of objects of foreign trade transactions.MethodsMethods: a formal legal analysis of Russian legislation on CFA, civil and currency regulation, a system-structural approach to identifying the place of digital financial assets in the system of objects of civil rights, as well as a comparative legal method for comparing the Russian model of point tokenization with foreign models of wide coverage of digital records of various assets. Elements of doctrinal and casual analysis were used to study scientific positions, judicial and contractual practices, as well as a functional approach to uncover the dual role of digital financial assets.ResultsResults. It has been established that the Russian legislator has formed a narrow, rigidly outlined outline of acceptable tokenization, limiting digital financial assets to monetary claims, rights under equity securities, corporate rights in non-public joint-stock companies and requirements for the transfer of securities. It is shown that in the external economic plane, digital financial assets are outside the «goods – works – services – results of intellectual activity» class scheme, which complicates the qualification of cross–border transactions and the choice of a currency control regime. The duality of the legal nature of digital financial assets has been revealed: they simultaneously act as an independent object of civil rights and a special way of fixing binding claims in a distributed registry. There is a contradiction between the technological potential of distributed registers and a conservative regulatory model that excludes cryptocurrencies, public joint-stock companies and hybrid instruments (including stablecoins).ConclusionsConclusions. It is concluded that it is necessary to revise the design of digital financial assets: to consolidate in law their binding nature and the turnover of the underlying requirements; to deploy experimental legal regimes for hybrid digital instruments and tokenized shares of public companies; to introduce a special type of foreign economic transaction with a dual subject, in which digital financial assets are considered as a digital certificate of commitment, not the final object of purchase and sale. This will allow to reconcile the external economic nature of such operations with the use of a distributed registry as a technical infrastructure for their documentation and execution.