The sphere of blockchain and circulation of cryptocurrency should be recognized as one of the most dynamically developing branches of economy, and this claim is further supported by its unique features, such as the de-centralized character of the net, the anonymity of users and their actions, the inability to recall or reverse the transaction, and a high volatility of virtual currencies. These characteristics made the blockchain technology attractive not only for law-abiding individuals, but also for criminals. For a long time most legal scholars in Russia and abroad viewed the sphere of blockchain as the sphere of criminal actions connected with illegal trade in goods, services or materials, whose circulation is limited or forbidden (narcotic substances, arms, pornography, etc.), and with laundering of illegal gains or financing terrorism. Current global trends in combating cybercrime leave no doubt that the ideas of the invulnerability of the blockchain net to unsanctioned access through the modifications of codes, the use of malware, the invulnerability to thefts or other property crimes against users or the third party are rather utopian. The legislative practice of recent years shows that these trends have not yet been recognized in our country. The research presented in this article consisted in the analysis of property crimes in the sphere of blockchain that are most common in the global virtual space, including in its Russian segment. The author describes the options for the qualification of such criminal actions provided by the current legislation and used in Russian court practice. The author also identifies the cases when the texts of some Articles of the Criminal Code of the Russian Federation do not match the level of public danger and the essence of criminal infringements against property committed with the use of information technologies, including the sphere of blockchain. A number of suggestions on improving the texts of Art. 158, 159.6, 165, 272 and 273 of the CC of the RF are presented.
Research background. Despite the enormous attention of the scientific community, legislators, and law enforcement officials to the development and implementation of measures to combat cybercrime, the sphere of blockchain functioning and cryptocurrency circulation remains outside the scope of most criminal law research. This causes perplexity in the context of the desire of state bodies to introduce blockchain technology in many significant areas of society, as well as to introduce a regulatory framework dedicated to the issues of private and public legal regulation of digital financial assets. Concerns are also caused by the increase in the number of cybercrimes and the increasing involvement in them of the blockchain technology and virtual currencies, the circulation of which is carried out based on blockchain. The need to study the prospects for criminal law regulation of the blockchain functioning spheres in the territory of the Russian Federation becomes more and more obvious in such conditions. Study objective: to identify and to study the main challenges (problems) for modern criminal law regulation of the blockchain functioning sphere, possible barriers (obstacles) that reduce the effectiveness of such regulation, as well as potential directions for responding to these challenges and overcoming such barriers. Methods: formal legal and comparative legal research methods are widely used in conjunction with systemic, logical, and philological methods of interpreting the norms of law. The empirical part of the study is based on the investigation of judicial and other law enforcement practices, as well as transcripts of meetings of the State Duma of the Russian Federation and information from the media about criminal offenses that have become widespread in the sphere of blockchain functioning. The analysis of modern foreign and Russian scientific literature relevant to the selected research topic is carried out. Results and novelty: it is the first time that comprehensive analysis of the challenges of the current stage of the blockchain functioning sphere development, as well as legislative, law enforcement, doctrinal, and social barriers for creating a system of effective and comprehensive criminal law regulation of the named sphere, is carried out. The author’s concept of the directions of responding to the analyzed challenges and overcoming the corresponding barriers is presented.
The idea of this study is based on the assumption that the reason for the unjustified application of the criminal law provisions on accounting by law enforcement agencies when punishing various variants of positive post-criminal behaviour, which are varieties of atonement of the harm caused by a crime, is a lack of attention to the nature of atonement as one of the indicators of positive changes in the legal consciousness of a person who has committed a crime, that is, an insufficiently thorough assessment of the characteristics of the personality of the perpetrators, the degree of rooting of antisocial attitudes in their minds, as well as the level of assimilation of legal values and ideals of law-abiding behaviour. The purpose of the study is to identify and study the aspects of the content of the term “atonement of harm” in the meaning provided for in clause “k” part 1 of Art. 61 of the Criminal Code of the Russian Federation, taking into account the interpretation of the corresponding varieties of positive post-criminal behavior as an indicator of a change in the legal consciousness of a person who has committed a credit fraud. The study is based on the widespread use of the formal legal research method in conjunction with the philological, systemic and logical methods of interpreting regulations. A comprehensive analysis of the content of various types of atonement of the harm caused by a crime as the indicators of positive changes in the legal consciousness of a person who committed credit fraud was carried out for the first time. The results of this study can be used to improve the practice of application of criminal-legal means of accounting for positive post-criminal behavior in the form of atonement when imposing punishment not only on credit fraudsters, but also on persons who have committed other crimes. The author’s concept of the criteria that form the content of the varieties of making amends is presented herein.
The purpose of the research is to identify the most successful ideas and legal techniques used in international law regarding regulations of defense against criminal offences in the sphere of cybersecurity, as well as blockchain functioning and cryptocurrency turnover. Results. On the basis of the positive international experience in regulating the criminal legal protection of relations in the last-mentioned sphere, the following directions for improving Russian criminal legislation were formulated: 1) fixation of the fair limits of the criminal administrative liability for defendant in reliance on the level of public danger of his personality and his offences; 2) creation of the formally defined crimes against computer information; 3) criminalization of some actions that precede cybercrimes; 4) expansion in the number of the mentioning of the sign "by interfering in the functioning of the resources of the storing, processing or transmitting computer information or data telecommunications network" as an essential or aggravating elements of crimes, typically committed with the use of information technologies (for example, in the articles number 133, 134, 135, 137, 138, 139, 146, 147, 163, 165, 240, 240.1, 241 of the Criminal Code of the Russian Federation, etc.); 5) expansion in the number of the elements of crimes combined in the chapter 28 of the Criminal Code of the Russian Federation, in reliance on the modern criminal schemes and typical criminal situations in the world of information technology; 6) expansion of the effect of the article number 274.1 of the Criminal Code of the Russian Federation on any criminal offense to the critical information infrastructure of the Russian Federation and inclusion of the additional aggravating elements in the text of this article.
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