Actual problems of regulatory consolidation of the cryptocurrency in the Russian Federation

Khimedenova Dina Nikolaevna ORCID: 0000-0002-1270-7447 PhD in Law Associate Professor; Department of Criminal Law; Southwest State University 374 Achkasova str., sq. 1, Khalino village, Russia, 305545 sadchikova.dina@yandex.ru Other publications by this author

Gorbacheva Tat'yana Igorevna Postgraduate Student; Department of Criminal Law; Southwestern State University 306000, Russia, region, Ponyri district, Oktyabrskaya str., 135g tanya.gorba4yova2017@yandex.ru

Introduction

Cryptocurrency, which has truly become the newest economic instrument of the 21st century, has aroused genuine interest among the entire scientific community over the past two decades and, as a result, is becoming one of the most discussed categories in the legal dimension, in relation to which and with which various criminal acts can be committed.

Today, "cryptocrime" has a pronounced growth trend. The number of crimes committed using various types of cryptocurrencies is constantly growing. This trend can be observed based on the reports of the Ministry of Internal Affairs in recent years, both for Russia as a whole and for individual regions. In particular, according to data for the past 2024, the number of criminal acts involving the use of cryptocurrencies is rapidly increasing ^[1]. At the same time, the digital currency acts in such crimes as an object of encroachment, a means of committing a crime, as well as the income received by the attacker.

Experts in the field of criminal law I.V. Zakharchuk ^{[2, pp. 103-106]}, E.A. Usacheva, A.D. Filimonov ^{[3, pp. 88-91]}, based on the materials of investigative judicial practice and modern doctrine, focus on the following categories of cryptocrime:

- illegal trafficking of prohibited items;

- various kinds of theft of cryptocurrencies;

- other criminal encroachments against property and property crimes;

- money laundering through virtual cryptocurrencies.

A slightly different type of differentiation of crimes related to cryptocurrency can be seen in the work of O.S. Kapinus ^{[4, pp. 72-78]}. The author groups cybercrimes in which:

- cryptocurrency acts as a means of making them;

- cryptocurrency is the subject of criminal infringement;

- cryptocurrency mining becomes the target of a criminal act.

The result of criminal activity is that the criminal element receives the original digital encryption code through which he – the criminal – will later receive the opportunity to exchange cryptocurrencies for monetary units in real terms or goods of various kinds.

Despite the widespread use of cryptocurrencies in the domestic state in recent years, an analysis of modern legislative practice indicates that such a relatively "new" area of criminal law response is full of a whole range of legal gaps, creating widespread difficulties and uncertainty in the qualification of such crimes.

This issue is also pointed out by a number of modern researchers who have studied these difficulties. For example, M.M. Dolgieva in her writings pays special attention to the problems of belonging to the legal category of "cryptocurrency" ^[5],[6], while I.V. Zakharchuk ^[2] and O.S. Kapinus ^[4] point out the disadvantages of classifying criminal acts with this type of currency. In turn, M.A. Egorova touches upon issues of legal regulation of taxation, issuance, storage, exchange, purchase and sale of cryptocurrencies in her research ^[7].

At the same time, Russian legal doctrine needs a qualitatively new study focused on a comprehensive study of the problems of legal regulation of cryptocurrency values.

Materials and methods

The research is based on a complex methodological foundation that combines various types of general scientific and private scientific methods, among which forecasting, modeling, and the formal legal method are the most widespread. Collectively, these methods provided an objective opportunity to assess the current state of legal regulation of cryptocurrencies in the Russian Federation, analyze doctrinal views on its legal essence, identify the most significant difficulties in this area, and develop a list of measures to improve current legislation. The use of this methodology, a number of basic doctrinal provisions, official statistics and judicial practice data made it possible to establish optimal changes in civil and criminal law legislation in the field of determining the ownership of cryptocurrencies, as well as to conclude that its criminal protection is necessary.

Results and discussion

First of all, a lot of problems arise regarding the establishment of the legal status of the "cryptocurrency" category, the definition of which is currently missing in the Criminal Code of the Russian Federation. Federal Law No. 259-FZ dated 07/31/2020 "On Digital Financial Assets, Digital Currency and Amendments to Certain Legislative Acts of the Russian Federation" for the first time interprets the term "digital currency", which recognizes a set of electronic data (digital code or designation). However, it is hardly possible to talk about the identity of the concepts of "digital currency" and "cryptocurrency". If the digital ruble, whose sole issuer is the Bank of Russia, has the official status of the national currency, then the cryptocurrency does not have a similar status. Despite its wide "popularity", cryptocurrency is not recognized as a legal monetary unit in the territory of the Russian Federation ^{[8, p.114]}.

Having not received legislative legalization, the cryptocurrency continues to have an uncertain legal regime, and therefore it remains unclear whether it should be considered as a means of payment, investment or accumulation. In turn, such ambiguity inevitably leads to ambiguity in the interpretation of its essential aspects in the criminal law of the Russian Federation.

In the modern doctrine of criminal law, many scientists pay attention to such an ambiguous category as cryptocurrency, including D.A. Myagkov, M.M. Dolgieva, V.I. Tyunin, Yu.I. Ovchinnikova and a number of others. However, their judgments are far from clear. Having accumulated the points of view of legal scholars from different years on the problem of conceptual load, we can conclude that in science, cryptocurrency has a different legal nature and is considered in several meanings.

Firstly, as a means of payment. This point of view is shared by such authors as D.A. Myagkov ^{[9, pp. 327-331]}, Yu.I. Ovchinnikova ^{[10, pp. 91-95]} and other researchers, who justify their position by the direct purpose of virtual currency, namely, its use as a means of payment. In this context, it is appropriate to refer to the explanations of the Plenum of the Supreme Court of the Russian Federation "On judicial practice in cases of the legalization (laundering) of funds or other property acquired by criminal means, and on the acquisition or sale of property knowingly obtained by criminal means," according to which "... cash means cash in foreign currency." In the Russian Federation or in a foreign currency, as well as non-cash funds, including electronic funds ...". Thus, the Supreme Court of the Russian Federation classifies electronic money as a national currency, which means only one thing – cryptocurrency is not an electronic means of payment.

Secondly, by some authors, such as V.I. Tyunin ^{[11, pp. 44-51]} or O.A. Mikhailova ^{[12, pp. 327-333]}, cryptocurrency is interpreted as a "monetary surrogate". Such judgments are based on a reference to a curious draft Federal Law "On Amendments and Additions to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation", developed by the Ministry of Finance back in 2014. We are talking about the legalization of criminal liability for illicit trafficking in monetary surrogates within the framework of art. 187.1. At the same time, we note that the interpretation of "monetary surrogate" was not disclosed in the draft law, and the bill itself was not adopted ^{[13, p. 44]}. Despite this, a belief has formed in the scientific community: cryptocurrency is a "surrogate" in monetary terms.

Thirdly, the views of other authors – M.M. Dolgieva ^{[14, pp. 171-177]}, V.A. Klyauzov ^{[15, pp. 174-178]}, etc. – are reduced to the concept of cryptocurrency as a property right arising in the blockchain network among its participants.

And finally, fourthly, cryptocurrency is a "different property" ^{[16, pp. 231-235]}. This view is shared by such legal scholars as A.A. Belousov, E.V. Silchenko, A.M. Vasiliev and a number of other authors.

Thus, the opinions currently available regarding the concept and "status" of "cryptocurrency" in the scientific community are extremely contradictory.

Given that cryptocurrency is actually considered a "digital asset", which means it acts as a kind of "virtual currency", it is most appropriate in the context of criminal law to support legal researchers who consider cryptocurrency to be "other property", which makes it possible to qualify cryptocrimes under the relevant articles of the Criminal Code of the Russian Federation (for example, theft of cryptocurrencies) ^{[17, pp. 67-69]}.

It can be noted that the special part of the Criminal Code of the Russian Federation in a special section – crimes in the field of economics – in its structural content does not have a specific article on cryptocrimes. The contradictory nature of this phenomenon, as well as the very structure of the Criminal Code of the Russian Federation, the division of which into sections and chapters is determined by the classification of objects of criminal protection, may give rise to disputes regarding the qualification of the actions of the perpetrator related to unlawful access to the "wallet" with cryptocurrency and their subsequent unlawful seizure. It seems most correct to share the point of view of A.A. Korennaya and N.V. Tydykova, who claim that cryptocurrency can be the subject of any theft in principle ^[18].

Continuing the issue of the need to recognize cryptocurrency values as other property, it should be noted that it has been raised more than once among representatives of law enforcement agencies. For example, at the end of 2024, the chairman of the Russian Investigative Committee, A.I. Bastrykin, pointed out the expediency of confiscating cryptocurrencies, recognizing them as material evidence, and arresting them ^[1].

It seems that classifying cryptocurrency valuables as "other property" is most justified in modern realities. Theoretical and legal research in the field of criminal law makes it possible to include the following components in the very content of the term "other property":

– all kinds of assets – tangible or intangible, as well as movable or immovable, expressed in things or in rights;

– documents of a legal nature and properties that establish the rights to such assets, as well as the interest in them.

Thus, summing up the above, it should be noted that due to the uncertainty of the legal status of cryptocurrencies in modern legal doctrine, there are rather contradictory views on its place in criminal law in general. In turn, the permanent increase in crimes involving the use of cryptocurrencies creates an urgent need to regulate this phenomenon at the legislative level.

According to its typological characteristics, the cryptocurrency fully meets the criteria of the subject of theft available in the criminal law doctrine. Thus, its economic (cost) content is expressed in the existence of a certain exchange rate of cryptocurrencies against official currencies, as well as in the possibility of using it as a means of payment for ordinary goods or services. The legal feature is manifested in the fact that any wallet with cryptocurrencies belongs to a certain person, which means that it is a stranger to the attacker. With regard to the physical attribute, it is worth noting that modern legal doctrine admits that due to the rapid development of the information space, not all objects of property rights have a material nature. This is evidenced by the recognition in judicial and investigative practice of non-cash funds as the subject of theft, despite the absence of a physical sign.

It seems that the most important step to clarify this issue will be the addition of Note 1 to Article 158 of the Criminal Code of the Russian Federation "Theft", which classifies cryptocurrencies as "other property".

However, as noted earlier, such innovations cannot be introduced into the Criminal Code of the Russian Federation due to the fact that the cryptocurrency does not have an official legislative status. M.I. Sinyaeva spoke very rightly on this issue, pointing out that the Russian state, as well as many foreign countries, has taken a wait-and-see attitude and so far prefer to monitor the development of the cryptocurrency industry without taking concrete actions to legalize it ^{[19, p. 81]}. Such a position, in our opinion, runs counter to the current trends in the development of the Russian Federation, which, faced with the turnover of cryptocurrencies on its territory, should legally respond to this phenomenon in accordance with business trends and the functioning of national taxation standards.

Taking into account the principle of dispositivity, it should be noted that due to the absence of a direct legislative ban on the use of cryptocurrencies in the Russian Federation, it can be fairly attributed to objects of civil rights, the list of which is strictly indicated in art.128 of the Civil Code of the Russian Federation.

In turn, only after the official adoption of the relevant amendments to the regulatory legislation can we talk about building and developing a theoretical model of criminal liability for illegal cryptocurrency trafficking in the Russian Federation. In particular, at the initial stage, it is advisable to prescribe in the Criminal Code of the Russian Federation the possibility of recognizing cryptocurrencies as other property that may be the subject of theft.

In addition, a promising area of current criminal legislation in the field under study is the possibility of recognizing cryptocurrencies as a subject of confiscation. In confirming the stated innovation, it is advisable to point out the practice of seizing and seizing cryptocurrencies obtained as a result of crimes in the Russian internal affairs bodies. In particular, back in 2021, the investigative authorities found that the accused of committing a number of criminal acts received remuneration in bitcoins for his illegal activities, which were successfully seized. The culprit's cryptographic wallet, password, and seed phrases were packaged in three different packages, sealed, and stored ^[20].

In general, it can be concluded that criminal legislation in its modern form has some potential in the field of combating illegal activities with and in relation to cryptocurrency, however, it is condemned in certain legislative innovations.

Conclusions

Concluding the research conducted within the framework of this article, we come to the conclusion that the legal legal instruments regarding the turnover and criminal protection of cryptocurrencies are clearly insufficient in the Russian Federation today, which it is advisable to draw the attention of the legislator by developing proposals to supplement existing regulatory legal acts or adopt new ones in the relevant part.

However, from a logical point of view, it seems impossible to establish a criminal law ban for the illegal use of cryptocurrencies without appropriate consolidation of the rules of its legal circulation within the framework of regulatory legislation. According to the basic legal principles, it is impossible to punish non-declaration and illegal turnover of cryptocurrencies without defining the legal basis for such turnover.

The analysis of the views of various representatives of modern legal doctrine on the issue of the essence and legal status of cryptocurrencies has allowed us to state that the most rational approach is to consolidate it as an object of theft and classify it as "other property" with an appropriate reflection of the latter norm within the framework of Article 128 of the Criminal Code of the Russian Federation.