Chief editor’s column
Interview of the issue
Topic of the issue
V.V. Arkhipov Virtual Property “Many Years After”: Does the Noble Dream of Digital Lawyers Have a Future? The phrase “virtual property” has become popular in legal discourse
in recent decades. The term “virtual property” unambiguously,
reasonably and meaningfully can be applied only to describe game
mechanics; for this area, as well as for digital law in general, it is
crucial not to seek to identify phenomena from the world of facts
with legal constructions, which means that it is inappropriate to
use the term “virtual property” for heterogeneous objects, trying
to combine, for example, domain names and in-game property
into one category – it is necessary to distinguish between objects
that are in direct connection with the subject of the law and objects
whose “ownership” is mediated by some virtual representation;
the same object of the digital world, including “virtual property”,
may fall under several legally coexisting parallel regimes; the notion of “virtual property” makes no genuine legal sense in the
context of an isolated game component – an imaginary, virtual
world – insofar as it is maintained, as well as in the case of an
attempt to build an analogy with сontinental property law, since
the model of an absolute legal relationship contradicts the nature
of this phenomenon; all this, however, does not mean that any
object of “virtual property” cannot be an object of legal relations,
but only that legal qualification is possible only on ad hoc basis;
the real-law model of “virtual property” in this case in the future
can be realised in the models of relations on the basis of NFT;
for all legal issues in game environments, including those related
to “virtual property”, the good faith of the participants in the
relationship is legally relevant, which should be determined
depending on compliance with the rules of the game, a fact
to which the concepts of the sui generis exclusive right of the
organiser of the game and the “game veil” as proposed in the
article are related.
Keywords:
digital law, information law, civil law, intellectual property, computer games, virtual worlds, virtual property, “magic circle”
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A.I. Savelyev Legal Regime of Preparatory Materials Obtained During the Development of Computer Programmes The paper is focused on the analysis of the legal regime of
preparatory materials created during the development of computer
programme. The article outlines existing doctrinal positions on
this matter. Special attention is paid to the definition of materials,
which fall under the notion of “preparatory materials”, as well as
to possible purpose of inclusion of such object in Article 1261 of
the Civil Code as separate copyrightable element of the computer
programme. It is concluded that unlawful use of preparatory
materials for development of a competing programme can be used
as a basis for infringement claim (plagiarism), even if source codes
of both programmes are not the same.
Keywords:
computer programme, preparatory materials, plagiarism
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Yu.S. Kharitonova Utilitarian Non-Replaceable Tokens in the Russian Law Enforcement: Problems of Legalisation The rise of distributed ledger technology and the growth of
the crypto-economy has led to the evolution of non fungible
tokens from digital image rights authentication to utility solutions
that allow consumers to benefit from the possession of rights in
the community. The legal analysis of utilitarian non-fungible tokens
leads to the need to apply the provisions of the law on utilitarian
digital rights to tokenisation services. However, possessing
the features of digital rights, utilitarian NFTs cannot always be
the object of investment, which requires the exclusion of such
tokens from the scope of regulation of the law on crowdfunding.
Keywords:
non fungible tokens, utility tokens, tokenisation of economies, digital assets
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O.A. Polezhaev NFT Assets in the System of Legal Rights: Problems of Legal Qualifications This article is devoted to the regulation of objects of intellectual
rights expressed in the digital environment with the help of NFT
tokens. It is proved that when determining the legal regime of
NFT, the key circumstance to be taken into account is the nature of
connections that arise between the digital asset and the underlying
object. The variety of types of such relations leads to a situation
in which apparently similar NFT tokens will perform completely different legal functions, which will inevitably affect the legal status
of their holders.
Keywords:
digital assets, NFT, objects of intellectual rights, transfer of exclusive rights, license agreement, access relations
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E.R. Valdes-Martines Digital Objects of Fine Art and NFT: Myths and Reality A non-fungible token is a digital unit of accounting, with the help
of which a digital impression is created for any unique physical
item or object, including a digital one, for subsequent performance
of various types of transactions, including transactions within a
closed blockchain system. The development of digital technologies,
including NFT, poses many questions to the researchers. The author
of this article conducts a comparative analysis of digital objects
and NFT, considers the problems regarding NFT and copyright to
the works of fine art, the transition of the right to NFT and the
transfer of copyright, possible violations of copyrights using NFT,
etc. The need and feasibility of changing the current legislation is
assessed.
Keywords:
digital objects, works of fine art, NFT
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M.A. Uspenskiy Nature of the Digital Currency in Common Law and Continental Law Currently, neither doctrine, legislators nor courts have a clear
understanding of cryptocurrency as an object of civil law in
the context of Article 128 of the Civil Code, and even the definition
of digital currency in the federal law on DFA (digital financial assets)
does not help to solve this problem. As a result, the court practice
on cryptocurrency is contradictory, plaintiffs are denied protection
of their rights, while the pace of lawmaking has slowed down
significantly. A comparative legal analysis of the best international
law enforcement practice on cryptocurrency has led to the conclusion
that its civilistic essence is as close as possible to property rights,
and the domestic law is significantly ahead of most codified acts of
the continental legal system.
Keywords:
cryptocurrency, blockchain, bitcoin, consensus, digital currency, property right, obligation, digital financial assets
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M.A. Tevs De Facto Sale of Personal Data: Review of Voluntary Data Monetisation Service Offers The legal situation with the turnover of personal data in services that
provide remuneration to the user for the processing and resale of
his data is investigated. The offers of a group of such services are
considered, their differences and common approaches are described.
Suggestions are given for practising lawyers and the regulator.
Keywords:
personal data, remuneration for processing, data as a service, data as a database, GDPR
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A.Yu. Braginets Information Objects as Property: Experience of Common Law Jurisdictions and Prospects for Its Implementation in Russia The article is devoted to the study of the common law approach
to the legal regime of economic values embodied in the form
of objectified data (data objects or digital assets). The author
focuses on the principal possibility and grounds for qualifying
data objects as property, as well as their inclusion into one of
the property classes. The analysis begins with an overview of
the essential characteristics of property developed in the court
practice and legal studies in common law jurisdictions. The author
then considers the problem associated with the integration of data
objects into the traditional dichotomy of personal property which
include choses in possession and choses in action. It is noted that
this integration is possible by introducing a third (non-traditional)
type of property. The author provides a brief overview of some
notable case law addressing the recognition of digital assets as
property. The study shows that courts of common law jurisdictions
recognise property rights in respect of digital assets, but they
do not classify such objects as a specific class of property.
Furthermore, there are opposite positions taken by courts
regarding the possibility of keeping data objects in possession.
In conclusion, the author gives a brief overview of some initiatives
related to legislative developments of data objects’ regime as
property in the United Kingdom and USA, as well as notes ideas and
approaches that might be of interest in the context of the Russian
law. In the author’s opinion, as in common law jurisdictions,
the Russian legislators should recognize data objects as a special
type of property, the appropriation of which is carried out through
a specific right that is distinct from the right of ownership. When
developing a new legal regime, they should also consider ideas of
foreign colleagues related to the criteria for identifying data objects
qualified as property.
Keywords:
digital assets, data objects, cryptocurrencies, electronic records, property, ownership, possession, control, common law
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Legal Chronicle The Legal Chronicle of the September issue contains comments on the new law on the digital
ruble, changes in bankruptcy and civil legislation, in particular on the change in the approach
to liability of a taxi aggregator, the launched experiment in Islamic banking, as well as the 11th
package of sanctions and countermeasures taken by Russia.
Keywords:
sanctions, counter-sanctions, digital ruble, taxi aggregator, Islamic banking, liability, bankruptcy
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Theory and practice
G.A. Gadzhiev Does Russian Civil Law Need Demistification? The article discusses the methodological problems of postclassical
civilism. In this regard, it is analysed what is the demistification of
the abstract norms of the common part of the Civil Code of the Russian
Federation. Based on a critical analysis of the achievements of
classical civil law, and above all pandect theory with its “abstract
monsters”, the possibilities of using new methods of cognition and
law application, such as the method of nominalisation of “modified forms” — abstract concepts, are described. The well-known
decisions of the Constitutional Court of the Russian Federation are
used as empirical material.
Keywords:
spacing (demistification) of abstract concepts, postclassical civil methodology, the cognitive structure of “modified forms”, nominalisation method, the constitutionalisation of the norms of the general part of civil law
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A.Yu. Bushev The Principle of Good Faith in the Judgments of the Constitutional Court of the Russian Federation: On the Anniversary of Gadis Abdullaevich Gadzhiev The article analyses the practice of the Constitutional Court of
the Russian Federation on the issue of applying the principle of
good faith before and after the amendments to the Constitution
of the Russian Federation in 2020, the conclusion is made that the provisions introduced into its Article 75.1 are an additional
constitutional justification for extending the principle of good
faith to all areas of activity, both private individuals and public
authorities, including relations between them, focusing on
cooperation, mutual respect, the manifestation of kindness, honesty
and justice in the name of the common well-being and welfare.
As one of the justifications for the conclusion about the increase
in the importance of this principle at all stages of the formation,
interpretation and application of a normative rules, some arguments
are given, expressed in the scientific publications of G.A. Gadzhiev,
who has devoted more than 30 years to the Court and is celebrating
another anniversary in 2023.
Keywords:
principles of law, good faith (bona-fides), Russian Constitutional Court, public interest, private interest, constitutionalisation
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T.A. Merebashvili Abandoned Shares of Lost Shareholders (A Commentary on the Supreme Court Ruling of 15 December 2022 № 304-ЭС22-10636) Despite the active digitalisation, significant simplification of
accounting and identification of the subjects of rights and obligations in the Russian Federation for 30 years, there is a problem of search
for “missing shareholders” and creation of a clear and transparent
mechanism for the return of shares of a dead or liquidated
shareholder. The author makes an attempt to answer the question of
the applicability of the analogy of the law, analyses judicial practice
and comes to the conclusion about the need for radical resolution
of the above problem. The economic essence of the action itself
and the form of business of joint-stock companies requires that the
rules for determining the fate of the “ownerless” and “escheated”
shares and issuer rights to such shares have appeared directly in
the law.
Keywords:
ownerless shares, escheated shares, corporate administration, promotion, shareholders’ rights, acquisition of own shares, treasury shares, minority
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E.A. Evstigneev Problems of Fulfilment of an Obligation When Challenging an Assignment In this article, the author analyses the current state of the institution of
assignment through the prism of fulfilment of an obligation of debtors
in the conditions of contesting the assignment agreement. The author
states that the existing provisions of the Bankruptcy Law grossly and
unreasonably violate the basic principles of the institution of assignment.
In particular, this leads to a violation of the principle «the position of the
debtor cannot be worsened by the assignment of the right to claim».
The author comes to the conclusion that if this principle is consistently followed, then a balance of interests is possible, in which the debtor
is obliged to exercise due diligence in relation to the circumstances
associated with the invalidity of the transaction for the direct transfer
of the assigned right. Based on this principle, in the conditions of
challenging the assignment agreement, the debtor must in any case be
considered in good faith if there is a decision that has entered into force
on the validity of the assignment of the right to claim.
Keywords:
assignment of the right to claim, dispositive transactions, obligation transactions, good faith, balance of interests
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E.A. Borisova Mediation and Notary: Experience of France and Russia Mediation as a procedure for a peaceful settlement of disputes
is gradually entering the legal life of many European countries.
Mediation being in the “set” of conciliation procedures proposed
by the state as an alternative to trial, as a friendly settlement of
legal conflict, is developing in a priority order. One of the areas of
development is the application of the procedure in notarial activity.
The French notary achieved in this area certain results that are of
interesting for study, analysis, and subsequent perception, taking
into account Russian legal realities. A notary mediator, a notary
who knows and accepts mediation as a way of resolving a dispute,
a notarial intermediary is not only the names that are interesting
for the theory of the civil process, bur they are notarial practices.
The use of various aspects of mediation in notarial activity allows
us to talk about the reality of the “union” between notaries and
mediation, its organic character due to the similarity of the goal,
objectives, principles of the notary and mediator. At the same
time, attention is drawn to the presence of a number of problems
that impede the active promotion of mediation into the sphere of
notaries.
Keywords:
mediation, notaries, intermediary, mediation center, justice, education, resolution of the dispute, conflict
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