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DOI: 10.25136/2409-7136.2023.8.43816
EDN: UNLLBU
Received:
11-08-2023
Published:
18-08-2023
Abstract:
The features of the financial legal regulation of the digital ruble are analyzed in the article. The author analyzes the key provisions of the Digital Ruble Concept proposed by the Bank of Russia, as well as the latest amendments to the legislation introduced at the end of July 2023, regulating the specifics of the legal regulation of the digital ruble. It is indicated that the allocation of the digital ruble as a separate form of money was carried out by the Bank of Russia in the economic aspect, the digital form of the Russian national currency by its legal nature refers to non-cash funds. The definitions of the concepts of "digital ruble", "digital currency" and "cryptocurrency" are analyzed in the article, their main features are highlighted. As a result of the study, the author has found that the digital form is common to the digital ruble, digital currencies and cryptocurrencies. The digital ruble is a Central Bank digital currency and cannot be classified as a digital currency. Unlike digital currencies, the digital ruble is legal tender on the territory of the Russian Federation and refers to fiat money. These essential features of the digital ruble make it possible to conclude that it is impossible to apply Federal Law No. 259-FZ of 31.07.2020 "On Digital Financial Assets, Digital Currency and on Amendments to Certain Legislative Acts of the Russian Federation" to the regulation of the digital ruble and on the implementation of legal regulation of the digital ruble mainly by the rules of financial legislation.
Keywords:
digital ruble, Central Bank, digital currency, cryptocurrency, Bank of Russia, digitalization, digital, financial legislation, Digital Ruble Concept, fiat money
This article is automatically translated.
Digitalization, the development of technology and the economy raises the question of the need to accelerate the implementation of settlements and ensure security when making transactions. According to the Bank of Russia, it is the digital ruble as an additional form of money that is able to respond to the challenges facing the financial market [1]. Nevertheless, the allocation of the digital ruble as the third form of the national currency is assessed as controversial by some authors [2], some rightly note that the term "form of money" in the reports of the Bank of Russia regarding the digital ruble is used in an economic context, since "from the standpoint of law, the digital ruble is the same non-cash funds known to us, true with its own characteristics" [3]. The Bank of Russia has developed the Concept of the digital ruble [4], within which various models of the introduction of digital rubles into the Russian legal field were developed. So, some of the proposed concepts provided for: 1) exclusion of access of individuals and legal entities to transactions with digital rubles; 2) making settlements by the Bank of Russia directly with clients without involving financial organizations in the process of making transactions with digital rubles; 3) limiting the functions of financial organizations when performing transactions with digital rubles to the functions of transit agents, which implies less interaction of financial organizations with customers. As a result of the discussions, it was recognized that each of these models does not fully meet the needs of the developing Russian market, and the basis for the development of the digital ruble infrastructure was a two–level model, at the first level of which is the Bank of Russia, which issues digital rubles and is the operator of the digital ruble platform, at the second level - financial organizations and the Federal treasury. Financial organizations will directly interact with users of the digital ruble platform and carry out procedures provided for by AML/CFT legislation. The Federal Treasury, as a special participant of the platform, will carry out operations to support the activities of budget organizations. As part of the digitalization process, in addition to the digital ruble, other forms of payment instruments, such as, for example, digital currencies and cryptocurrencies, have also been actively developed. It seems necessary to distinguish between the concepts of "digital ruble", "digital currency" and "cryptocurrency". Let's focus on the definition and main features of the categories under consideration. In the Russian Federation, the definition of "digital currency" is contained in Federal Law No. 259-FZ of 31.07.2020 "On Digital Financial Assets, Digital Currency and on Amendments to Certain Legislative Acts of the Russian Federation" [Federal Law No. 259-FZ of 31.07.2020 "On Digital Financial Assets, Digital Currency and on Amendments to separate legislative acts of the Russian Federation" // Collection of Legislation of the Russian Federation, 03.08.2020, No. 31 (Part I), Article 5018], which entered into force on January 01, 2021. A digital currency is a set of electronic data (digital code or designation) contained in an information system that is offered and (or) can be accepted as a means of payment that is not a monetary unit of the Russian Federation, a monetary unit of a foreign state and (or) an international monetary or settlement unit, and (or) as an investment and in respect of which there is no person obligated to each owner of such electronic data, with the exception of the operator and (or) nodes of the information system, who are only obliged to ensure compliance with the procedure for the release of these electronic data and the implementation of actions in relation to them to make (change) records in such an information system according to its rules. From the above -mentioned legislative definition , the main features of a digital currency can be distinguished: 1) is a digital code; 2) can be accepted as a means of payment; 3) is not a monetary unit of the Russian Federation or a foreign state; 4) there is no person obligated to the holders of the digital currency. There is no legal definition of the concept of "cryptocurrency" in the Russian Federation, however, if we turn to the scientific literature, it can be established that cryptocurrency is "a payment instrument circulating within a decentralized (peer–to-peer) network, which is a digital representation of value, cryptographic technologies are used to protect transactions with it" [5]. The main distinguishing features of cryptocurrencies: 1) is a digital code; 2) there is no single emission center; 3) high volatility of the exchange rate is characteristic; 4) lack of security of cryptocurrency units. The study of the essential features of cryptocurrencies allows us to conclude that cryptocurrencies can be attributed to one of the types of digital currency [6]. Cryptocurrencies are not a legal means of payment on the territory of the Russian Federation. At the same time, the potential to use cryptocurrencies as a means of payment for goods, works and services allows some researchers to attribute cryptocurrencies to private funds [7].
Digital Ruble according to the latest amendments made to the legislation [Federal Law No. 339-FZ of 24.07.2023 "On Amendments to Articles 128 and 140 of Part One, Part Two and Articles 1128 and 1174 of Part Three of the Civil Code of the Russian Federation"// "Assembly of Legislation of the Russian Federation", 31.07.2023, No. 31 (Part III) 5765; Federal Law No. 340-FZ of 24.07.2023 "On Amendments to Certain Legislative Acts of the Russian Federation"// "Collection of Legislation of the Russian Federation", 31.07.2023, No. 31 (Part III), Article 5766], is a type of non—cash funds with which it will be possible to make payments through a special the platform of the Bank of Russia. Thus, the digital ruble is a legal means of payment on the territory of the Russian Federation and refers to fiat money. The distinctive features of the digital ruble are: 1) each digital ruble is a unique digital code functioning within the framework of the digital ruble platform; 2) the issuer of the digital ruble is the Bank of Russia; 3) the digital ruble is an obligation of the Bank of Russia; 4) since the digital ruble is the third form of the Russian national currency, one digital ruble is equal to one cash ruble, and also equal to one non-cash ruble. The International Monetary Fund highlights the following key features of the central bank 's digital currency: 1) digital nature; 2) issue by the Central Bank; 3) is a currency, a means of payment in the territory of the state [8]. These features of the digital ruble make it possible to attribute the digital ruble to the digital currency of the central bank - the digital form of funds that are issued and regulated by the central bank of the state [9]. Thus, we can conclude that the digital ruble, digital currencies and cryptocurrencies have in common their digital form (digital code). The digital ruble is the digital currency of the central bank and cannot be attributed to digital currencies. Unlike digital currencies, the digital ruble is a legal means of payment on the territory of the Russian Federation and refers to fiat money. These essential features of the digital ruble allow us to conclude that it is impossible to apply Federal Law No. 259-FZ of 31.07.2020 "On Digital Financial Assets, Digital Currency and on Amendments to Certain Legislative Acts of the Russian Federation" [Federal Law No. 259-FZ of 31.07.2020 "On Digital Financial Assets, Digital Currency and on Amendments to Certain legislative acts of the Russian Federation" // Collection of Legislation of the Russian Federation, 03.08.2020, No. 31 (Part I), Article 5018] and the need to "embed" the legal regulation of the new form of the Russian currency in the current financial legislation regulating the implementation of settlements. The legislator followed this path at the end of July 2023. Let's focus on the main recent changes in legislation in this area: 1) the Bank of Russia was entrusted with the functions of creating an infrastructure for the circulation of the digital ruble. According to the latest legislative amendments made to Federal Law No. 86-FZ of 10.07.2002 "On the Central Bank of the Russian Federation (Bank of Russia)" [Federal Law No. 86-FZ of 10.07.2002 "On the Central Bank of the Russian Federation (Bank of Russia)"// "Collection of Legislation of the Russian Federation", 15.07.2002, No. 28, art. 2790], the Bank of Russia organizes and ensures the functioning of the digital ruble platform, the Board of Directors of the Bank of Russia regulates certain features of operations within the digital ruble platform, in particular, determines the maximum amounts of transactions with digital rubles, tariffs for the services of the digital ruble platform operator, the maximum value of the amount of fees charged to users of the digital ruble platform when performing operations. The law in question was supplemented by articles 82.10–82.12 regulating the organization and operation of the digital ruble platform; 2) the organizational features of the functioning of the digital ruble platform and transactions with digital rubles have been established. Federal Law No. 161-FZ of 27.06.2011 "On the National Payment System" [Federal Law No. 161-FZ of 27.06.2011 "On the National Payment System"// "Collection of Legislation of the Russian Federation", 04.07.2011, No. 27, Article 3872] established that the digital ruble platform is an information system, within the framework of which interact: a) the operator of the digital ruble platform, namely, the Bank of Russia; b) participants of the digital ruble platform – money transfer operators and foreign banks providing access to the digital ruble platform; c) users of the digital ruble platform – individuals or legal entities, individual entrepreneurs who have access to the digital ruble platform; 3) the legislation establishes a separate new type of bank account – the digital ruble account. It is separately noted that it is not allowed to conclude a digital ruble account agreement with several users (a joint account), the formation of a group of digital ruble accounts, as well as a digital ruble account in precious metals. In addition, the digital ruble account is not credited, and it is also not allowed to charge interest on the balance of digital rubles on the account.
Thus, the Bank of Russia is entrusted with the function of creating an infrastructure for the circulation of the digital ruble, amendments have been made to the legislation on the national payment system, creating a legal framework for the start of the use of digital rubles. It can be concluded that the legal regulation of the digital ruble is provided mainly by the norms of financial legislation.
References
1. Bank of Russia. (2020). Digital ruble. Report for public consultation. Moscow, 3. Retrieved from https://www.cbr.ru/StaticHtml/File/112957/Consultation_Paper_201013.pdf
2. Turbanov, A.V. (2022).Digital ruble as a new form of money. Actual problems of Russian law, 5, 73-90.
3. Khavanova I. (2023). Digital ruble. Now in the Tax Code of the Russian Federation? EZH-Accountant, 25, 5.
4. Bank of Russia. (2021). The concept of the digital ruble. Retrieved from https://www.cbr.ru/Content/Document/File/120075/concept_08042021.pdf
5. Gracheva, E.Yu., Sitnik, A.A., & Papaskua, G.T. (2023). Legal regulation of the use of financial technologies in the context of digitalization of the Russian economy. Moscow: Prospekt.
6. Andrianova, N.G. (2023). Approaches of international organizations to the definition of the essence of cryptocurrencies. International Law and International Organizations, 2, 61-69.
7. Rozhdestvenskaya, T.E., & Guznov, A.G. (2021). Digital currency: features of regulation in the Russian Federation, 1, 58-67.
8. Bossu W., Itatani M., Margulis C., Rossi A., Weenink H., & Yoshinaga A. (2020). Legal Aspects of Central Bank Digital Currency: Central Bank and Monetary Law Considerations. IMF, 7.
9. Stanley A. (2022). The Ascent of CBDC's. More than half of the world’s central banks are exploring or developing digital currencies. Finance and Development, 48.
Peer Review
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A REVIEW of an article on the topic "Digital ruble: features of financial and legal regulation". The subject of the study. The article proposed for review is devoted to topical issues of financial and legal regulation of relations in connection with the introduction of the digital ruble. The author examines the main features of the digital ruble, its differences from other phenomena (for example, from cryptocurrency), and also provides a comment on the current legislation. The subject of the study was the opinions of scientists, the norms of legislation, and the materials of legislative work. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The purpose can be designated as the consideration and resolution of certain problematic aspects of the issue of the specifics of financial and legal regulation of the digital ruble. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as to draw specific conclusions from the materials of the legislative work. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the latest changes in legislation). For example, the following conclusion of the author: "A digital currency is a set of electronic data (digital code or designation) contained in an information system that is offered and (or) can be accepted as a means of payment that is not a monetary unit of the Russian Federation, a monetary unit of a foreign state and (or) an international monetary or settlement unit, and (or) as investments and in respect of which there is no person obligated to each owner of such electronic data, with the exception of the operator and (or) nodes of the information system, who are only obliged to ensure compliance with the procedure for releasing these electronic data and taking actions in relation to them to make (change) records in such an information system according to its rules". Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of legal regulation of relations regarding the digital ruble is complex and ambiguous. Indeed, after the introduction of the digital ruble into circulation, practical questions will arise about its effectiveness, necessity, security and the possibility of using it in certain financial transactions. It is difficult to argue with the author that "Digitalization, the development of technology and the economy raises the question of the need to accelerate settlements and ensure security when making transactions. According to the Bank of Russia, it is the digital ruble as an additional form of money that is able to respond to the challenges facing the financial market [1]. Nevertheless, the allocation of the digital ruble as the third form of the national currency is assessed as controversial by some authors [2], some rightly point out that the term "form of money" in the reports of the Bank of Russia on the digital ruble is used in an economic context, since "from the point of view of law, the digital ruble is all the same non-cash funds known to us, however, with its own characteristics" [3]". Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "the Bank of Russia has been entrusted with the function of creating an infrastructure for the circulation of the digital ruble, amendments have been made to the legislation on the national payment system, creating a legal framework for the start of using digital rubles. It can be concluded that the legal regulation of the digital ruble is provided mainly by the norms of financial legislation." These and other theoretical conclusions can be used in further scientific research. Secondly, the author offers generalizations of legislation and original comments on it, which may be useful for practicing lawyers in the field under consideration. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Legal Studies", as it is devoted to legal problems related to the introduction of the digital ruble in the Russian Federation. The content of the article fully corresponds to the title, since the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia and abroad (Gracheva E.Yu., Sitnik A.A., Rozhdestvenskaya T.E., Guznov A.G., Bossu W., Itatani M., Margulis C., Rossi A., Weenink H., Yoshinaga And others). Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the formation of legislation on the digital ruble, as well as its effective application in law enforcement practice. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"
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