The draft of a new law on strengthening the ban on the use of digital financial assets as a means of payment for goods and services once again tightens the regulation of digital rights and tokenized assets, respondents are sure RBC-Crypto lawyers.
On June 7, Anatoly Aksakov, head of the State Duma Committee on the Financial Market, submitted for consideration billwhich establishes a direct ban on the use of digital financial assets (DFA) and utilitarian digital rights (DPR) to pay for goods and services.
According to the current legislation, there is no direct prohibition on the use of such assets as a means of payment. The draft document makes appropriate changes to the already adopted legislative acts.
“The amendments establish a direct ban on the transfer or acceptance of DFA and UCP as a counter provision for transferred goods, work performed, services rendered, as well as in another way that allows one to assume payment for DFA of goods (works, services),” the explanatory note to the bill says. .
The document also obliges CFA exchange operators to refuse transactions where it is possible to use the CFA as a monetary surrogate.
The law “On Digital Financial Assets” establishes a ban on the use of only digital currencies, that is, cryptocurrencies, as a means of payment, explained Roman Yankovsky, Moscow Digital School teacher. The lawyer noted that there is no such prohibition for digital rights, in particular utility tokens.
He explained that the category “means of payment” refers to money and near-money phenomena. Digital assets are property; in principle, they cannot be used as a means of payment.
“It’s like I said you can’t use drinks as a means of payment. What does it mean? Why can’t they be exchanged? As long as we call something property, it will not be a means of payment. And if I exchange a bottle of whiskey for a bicycle, then this is not a payment for a bicycle, but a barter, ”Yankovsky gave an example.
According to him, the system with digital financial assets worked in the same way. The lawyer believes that, in principle, it is incorrect to call CFA a means of payment if it is property. And the exchange of one property for another is not payment, but barter.
Yankovsky also drew attention to the category of money surrogates referred to in the explanatory note. He said that we do not have a definition of a money surrogate anywhere. There is an indication that it is forbidden to use them, but nowhere is it written what it is.
The expert points out that questions arise about the definition of a money surrogate: why shares or bills are not money surrogates. According to him, payment by shares and promissory notes is possible.
According to Yankovsky, the proposed amendments are legally not entirely correct in the part that concerns the monetary surrogate and means of payment in relation to the digital financial market.
The bill once again tightens the regulation of the Russian security and utility token market by introducing new prohibitions and restrictions, Moscow Digital School teacher Efim Kazantsev confirmed.
The expert calls the fact that the document is quite specific and clearly aimed at creating a mechanism that can really be used in practice, the expert calls it a positive moment.
“It will apparently be used only by a limited circle of entities close to the Central Bank of the Russian Federation. For the mass user, the regulatory risks embodied in the draft law will make Russian CFAs and utility tokens an unattractive asset,” Kazantsev admitted.
According to the lawyer, numerous prohibitions and restrictions exclude these assets from the mass investment sector.
Kazantsev said that it is planned to use special “nominal accounts” to carry out settlements on transactions made using electronic platforms.
He explained that it would be possible to open such an account not in any bank, but only in credit institutions whose credit rating would not be lower than the level established by the Board of Directors of the Bank of Russia.
“Of course, it is impossible not to notice the proposed additional powers of the Central Bank of the Russian Federation to prohibit the entry and (or) change of entries about the CFA in the information system. According to the Bank of Russia, this violated one of the many rules for the issuance and circulation of CFAs,” Kazantsev added.
He also noted the possibility of applying such a ban by the Central Bank of the Russian Federation not only in the event of a real violation, but also in the event of “a threat to the rights and legitimate interests of users of the information system.”
The lawyer believes that in essence this means the absolute power of the regulator over the operators of information systems. Kazantsev stressed that the Central Bank gets the opportunity at any time to see “a threat to the rights and legitimate interests of users” and prohibit any movement of the CFA in a particular information system.
“And there are quite a lot of such “bookmarks” in the bill. If it is adopted in its current form, this will further reduce the attractiveness of the Russian jurisdiction for investing in DFA and utilitarian digital rights,” the expert concluded.
The previous amendments to the draft law “On Digital Currency” were submitted for consideration at the end of May. The Ministry of Finance added amendments allowing the use of digital currencies to pay for foreign trade activities.
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