Problems of Using Digital Financial Assets as Investments

The paper discusses the problems of legal regulation of the use of digital financial assets as investments. The emerging problems are primarily related to the legal means inherent in the mechanism of legal regulation of emerging legal relations, as well as with the significant specifics of relations arising on the Internet and other information and communication networks. The specific features of these relations are identified, related to the impossibility of geographical determination of the location of the subject of the relationship and, consequently, the definition of national law to be applied in relation to the investment of digital financial assets. Attention is drawn to the complex structure of legal relations, the parties of which are both “legal” and “technical” entities. The interrelation of actions of subjects causing legal consequences is shown. It is proposed to classify the subjects of 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 auxiliary (additional) ones—whose actions provide the possibility of legal consequences. It is indicated that the actions of all subjects, both main and auxiliary, are important for the process of the emergence of legal relations. An important problem of interaction in a virtual network in the process of investing digital financial assets is the process of identification and authentication of subjects. This problem is directly related to the determination of the state affiliation of the subject of the legal relationship and the definition of the national law to be applied. It is indicated that in the Russian Federation this problem has been practically solved with the creation of a Unified identification and authentication system. However, in international and interethnic relations, this issue still needs to be resolved. Several ways of solving the problem of unified legal regulation of relations related to the investment of digital financial assets are analyzed. There are four main models that currently exist. First of all, we are talking about the convergence of the national law of different States. The disadvantages of this approach are indicated. The second model is related to the creation of a single international regulation. The arguments “for” and “against” are given. The problem of creating polycentric or decentralized law is considered. The third model is associated with the use of technical norms in the regulation of relations along with legal ones. The fourth approach justifies the existence of two levels of regulation, external and internal. The fifth model of legal regulation of the investment of digital financial assets is proposed, characterized by 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 of its own legal regulation within the system (intra-system regulation or platform law). The problem of the existence of internal local regulation of legal relations of investment of digital financial assets is raised. The conclusion is made about the formation of a local platform right. The polycentricity of the created supra-platform law is substantiated. The problem of prohibiting the counter-provision of a digital financial asset is being solved. It is proposed to replace this ban with a ban on the use of a digital financial asset as a means of payment.