Using Digital Financial Assets as Investments: Problems of the Legal Regulation

Introduction: the paper examines the problems with the legal regulation of using digital financial assets as investments. The emerging problems, according to the authors, are primarily related to the legal means inherent in the mechanism of the legal regulation of emerging legal relations, as well as to the significant specifics of relations arising on the Internet and other information and communication networks. Purpose: the purpose of the work was to identify the specific features of this relationship concerning the impossibility of geographically determining the residence of the party to the relationship and, as a result, determining the national law to be applied in relation to investing digital financial assets. Methods: the specifics of legal relations arising in the information and communication network between investors in digital financial assets and other entities have led to the use of special research methods. Among the general scientific tools, along with analysis, synthesis, deduction, and induction, the empirical method of legal modeling was used. Specific scientific methods were also used: dogmatic (formal-logical) and formal-legal, as well as the methods of legal forecasting, legal analogy, and technical-legal. Results: the paper substantiates the complex composition of legal relations, the parties to which are both “legal” and “technical” entities. The interrelationship between the actions of the parties causing legal consequences is shown. It is proposed to classify the parties to legal relations arising in the virtual network in the process of investing digital financial assets into the main ones, whose actions generate legal consequences, and the auxiliary (additional) ones, whose actions provide the possibility of legal consequences. It is argued that the process of emerging legal relations is influenced by the actions of all parties, both basic and auxiliary. An important problem of interaction in the virtual network in the process of investing digital financial assets is the identification and authentication of the parties. This complexity is directly related to the definition of the nationality of the party to the legal relationship and the definition of national law to be applied. It is indicated that in the Russian Federation, this issue has been practically resolved with the creation of a Unified identification and authentication system. However, in international and interethnic relations, it still needs to be worked out. Several ways to solve the problem of unified legal regulation of relations involving the investment of digital financial assets are analyzed. There are four main models that currently exist. First of all, it concerns the convergence of the national laws of different states. The disadvantages of this approach are indicated. The second model is related to the creation of a unified international regulation. The arguments “for” and “against” are given. The problem of creating a polycentric or decentralized law is considered. The third model is related to the use of technical norms in the regulation of relations along with the legal ones. The fourth approach justifies the existence of two levels of regulation: external and internal. Conclusions: the authors have proposed the fifth model of the legal regulation of relations for the investment of digital financial assets, characterized by the legal regulation of individual objects of digital communication, a combination of external state regulation with self-regulation, as well as the possibility of creating an information platform for its own legal regulation within the system (the intra-system regulation or platform law). The problem of the existence of internal local regulation of legal relations for investing digital financial assets is analyzed. The conclusion is made about the formation of a local platform law. The polycentricity of the supra-platform law is substantiated. The problem of prohibiting the counter-provision of a digital financial asset is solved. It is proposed to replace this ban with a ban on the use of a digital financial asset as a means of payment.