Central Bank of the Russian Federation against Bitcoin?

Not so long ago, we published statistics for thinking about where the electronic money market of the Russian Federation is going ( part 1 , part 2 ).

And 2013-2014 proved that everything said, unfortunately, was done: banks lose their licenses and gradual consolidation of already not small credit organizations (which only costs the sale of the Bank of Moscow and TransCreditBank, as well as the closure of one of the largest processing centers represented by the Master Bank); The Central Bank of the Russian Federation stood up "in the rack" and announced a hunt for cryptocurrency , which was picked up by the Prosecutor General of the Russian Federation; and the “classic” electronic money gradually begins to overgrow with unnecessary “sub-institutions” and procedures that hardly (c) make life better, and therefore the players try to get rid of their own creations (of the most important, we can mention: Yandex.Money, RBC- money, the fall of Qiwi’s shares after just mentioning the “anti-terrorism package”, closing metabank.ru, but there have been too many examples in the last 2-3 years, too much, too much).

Each of these cases needs a careful and balanced analysis, but now it’s not about this: Bitcoin turnover is illegal in the territory of the Russian Federation . So we were told. But on what basis ? If we move away from the logical controversy “on the basis of the foregoing and directly stated,” a ban on one political will is a long time ago and far from the most effective stage for public authority and for the norms it itself has created.
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Therefore, everything under Habrokat is only an attempt to start a discussion of an important and truly valuable question about the future of IT in the Russian Federation.

Let's start with a simple one: according to Art. 7 of the Federal Law of the Russian Federation “On the Central Bank of the Russian Federation” of the Central Bank of the Russian Federation “... issues related to its competence are issued in the form of instructions, regulations and instructions standard acts obligatory for ... all legal entities and individuals”.

We follow the link http://www.cbr.ru/press/PR.aspx?file=27012014_1825052.htm , we look at the circulation of the Central Bank on "virtual currencies" and see that:

1. The publication (not without reason) is in the section "press service";
2. Name - information (I emphasize: not an indication, position, instruction, namely - information);
3. This informational message does not contain a direct indication that: a) Bitcoin is prohibited in the territory of the Russian Federation; b) bitcoin is a monetary surrogate. Moreover, based on a formal interpretation, as the lawyers say, the btc exchange activity itself is not prohibited, it can only be considered as a potential involvement in the execution of suspicious transactions. It turns out a very complicated and squeaky construction : there are suspicious transactions, and there is some kind of activity that may contain suspicious transactions in an unknown proportion and therefore, without any statistical data and legal analysis, the second is equal to the first. That is, descending into routine, it turns out that the entire cash turnover (and he in the Russian Federation is up to 25% according to different sources) is the same activity.

There are many consequences of such verbal research, I will mention two, but very revealing:

1. metabank.ru, on the website of the exchange office, is written in black for “whites” literally the following: “although this publication is a recommendation, we decided to suspend the exchange, in order to avoid additional risks that may affect the quality of service”. In this case, the point is that the text of the message of the Central Bank contains a reference to exchange transactions , which means that the activities of dozens of exchanges, exchangers and even WebMoney systems (read WMX) fall under the category of “suspicious transactions”. In this case, only one naked enthusiasm of the press service of the Central Bank.
2. alfacoins.com is a start-up that has so self-redefined its own temporal coordinates that it created a precedent of a temporary paradox in the social continuum. At the moment, the project organizers have already expressed their position regarding the actions of the Central Bank and have petitioned the President of the Russian Federation. How the story ends - the same physical quantity will show, but the beginnings are very interesting, because are at the forefront of all the legal upheavals of cyber-money.

Yes, these projects are not the largest or even the most unique for the world or Russia. But, after all, quite recently, small payment systems and aggregators simply dared to the market , many of which contributed something of their own, and most importantly, gave dozens of programmers jobs that lived and worked in Russia, Belarus, and Ukraine. But PayPal came to Russia, which, by the way, was developed by one of the Russian developers who emigrated to the USA. And in general, we can buy whatever we want, but with the proviso - “imported”.

Let's go further: neither the Prosecutor General’s Office, nor the FSB, nor the Central Bank set a ban on BTC turnover (and they cannot): “... it is not planned to prohibit citizens from investing their money in bitcoins”. It is written literally ( http://top.rbc.ru/economics/07/02/2014/903913.shtml ). But on what basis can they prohibit - not a word about it, either .

In order for the Central Bank of the Russian Federation and its ilk to have compelling reasons for the prohibition of bitcoin trafficking, legal expertise is needed, which will give a clear answer, and what is Bitcoin with so on. Russian law .

In particular, the Central Bank of the Russian Federation did not define either Bitcoin or the so-called “virtual currencies”, indicating only that:

1. They are anonymous;
2. The emission is carried out by an unlimited number of subjects;
3. There is no security and obligated subjects;
4. Operations are speculative.

The prosecutor's office (judging by the statement of RBC) went further: she recognized (!?) BTC as a money surrogate. But again: on the basis of what - no one dared to explain. Without pretending to be the last resort, I will express a few simple theses.

According to Art. 27 of the Federal Law "On the Central Bank of the Russian Federation": "the introduction in the territory of the Russian Federation of other monetary units and the issue of money substitutes are prohibited." The problem number one is that in the Russian Federation there is still no well-established, and even more legal definition of monetary surrogates. Moreover, with such a broad (as in the Central Bank) approach, such as, for example, a bill of exchange. Although it would seem, the Civil Code of the Russian Federation establishes the completely legal nature of the latter.

Here is what A. Kurbatov (associate professor, candidate of law) writes about this: “virtual monetary units also cannot be recognized as money substitutes in the sense used in the current legislation ... the ruble is the only legal means not of any payment, but of cash . It is the issue of cash (banknotes and coins) carried out exclusively by the Central Bank of the Russian Federation ... ".

Accordingly, the ban on the introduction in the territory of the Russian Federation of other monetary units and the release of money substitutes contained in Art. 27 ... again concerns cash. If you look at the law itself, it is very clearly stipulated: “Chapter VI. The organization of cash circulation ... The introduction in the territory of the Russian Federation of other monetary units and the issue of money substitutes are prohibited. " Therefore, the position according to which “... cryptocurrencies, including the most famous of them - Bitcoin, are cash surrogates” - is at best controversial. And yes, BTC for the Central Bank of the Russian Federation, apparently, looks like this:

But according to the “Regulations on the rules for the transfer of funds”: “the transfer of funds is carried out in the framework of the following forms of non-cash settlements: settlements by payment orders; calculations on the letter of credit; settlement of collection orders; check payments; payments in the form of transfer of funds at the request of the recipient of funds (direct debiting); payments in the form of transfer of electronic money ", i.e. virtual currencies, which certainly can not be attributed to cash, have a very, very mediocre relation to the “bank transfer” (precisely from the Russian right).

But further - more: “in identifying a company that decides to accept Bitcoins as a means of payment, a criminal case can be opened against its leaders under Article 174 of the Criminal Code of the Russian Federation”. Apparently, few people care what exactly is written in Art. 174 of the Criminal Code .

And yet: "the commission of financial transactions and other transactions with monetary funds or other property, knowingly acquired by other persons in a criminal way, in order to give a lawful type of possession, use and disposal of specified monetary funds or other property". Those. it turns out about the same as when buying “gray” (or rather, “black”) goods, bought by a 2-3-4th ... bona fide purchaser; and so it is possible to go further: paid off with a fake note - 100% cheater.
In addition, it is also impossible to call Bitcoin a payment system (within the framework of Russian legislation), because

• There are no intermediaries, i.e. operators, and with them, and other participants, of the payment system itself;
• The payment system uses electronic money, not virtual currencies, which the Central Bank has spoken about. And here there is already a clear divide between the Federal Law No. 161 (“On the national payment system”) and the Central Bank’s fabrications, which may have wanted to enrich the “too abstract norms” of the law with their own categorical and conceptual apparatus.

And this is what the Civil Code of the Russian Federation says about this: “the objects of civil rights include things, including cash and documentary securities, other property, including non-cash money, non-documentary securities, property rights; results of work and provision of services; Protected results of intellectual activity and equated to them means of individualization (intellectual property); intangible benefits. " And after all, other Central Banks, which are also not in the spirit of Bitcoin, have left behind BTC one of the possible legal forms: either as a commodity (in Finland), or as a digital commodity (Singapore), or as a method of settlement (Croatia), etc. Of course, there are Central Banks that have banned Bitcoin (Thailand). In this sense, Solomon's decision was made by China, which temporarily banned exchange operations with cryptosol, but left the possibility of payment from private individuals. But to prohibit on the basis of one “should so” is already beyond the comments.

And what about us? We have a ban on everything new and interesting . And it does not matter that Bitcoin can be understood as information, the value of which lies in the presence of a public and private key. An example is Art. 2 of the Federal Law "On Information ...", which says: "information - information (messages, data), regardless of the form of their presentation." The point of view is more than disputable, but there is one important quality in it - debatability.

In this regard, the Central Bank of Russia and other state. structures need to answer at least the following questions (not in the sense of answering me, but in order to prove in court the guilt of the subjects who are allegedly involved in suspicious operations):

1. On the basis of what norms is BTC a (!) Money surrogate, and is not, for example, another property (property right?) Specified in the Civil Code of the Russian Federation?
2. Based on what is the territory of the BTC emission determined, if a specific component of the BTC is obtained by participating in the pool of tens, hundreds, thousands of participants from different countries? The easiest case to clarify: the client uses an anonymous vpn and by IP address is, say, in Holland. In this case, in fact, his computer is located in Ukraine, and he lives in the territory of the Russian Federation. In addition, all his BTCs are obtained by participating in one of the pools along with other (tens, hundreds, thousands) participants of the same pool, whose domain is linked, say, to Taiwan, the server is physically located in Germany, and the administrator is in Thailand. And in order to withdraw to cash, the person who received BTC using mining, used the “difficult” exchange, from 2 exchange points. Believe me, the real situation is much more complicated, because The absence of a single emission center creates many problems in establishing, for example, property rights.
3. What are the actual grounds for the accusation of a citizen of the Russian Federation in committing a crime under Art. 174 of the Criminal Code regarding the use of virtual currencies? Options: the presence of the client program; Proven transaction, passed from the IP of a specific person; exchange of “named” BTC in exchange offices / exchanges, etc. What is evidence of participation in a suspicious transaction through "virtual currencies"?
4. What is meant by virtual currencies? On the basis of what norms of Russian (international) law is this concept introduced and how does it relate to the concepts of the Federal Law No. 161? By the way, according to the last point, both Yandex Money and MoneyMail.ru and representatives of other payment systems have already expressed themselves, but not the Central Bank itself.
5. And, by the way, what is a monetary surrogate and on the basis of which norms of current legislation is it possible to reveal its features?

In fact, there are still a lot of questions . But even the answers to 4 and 5 for me personally would dot many i. In the meantime, we slowly and surely roll into the high-tech Middle Ages , i.e. Ahead of us are waiting (by European standards): the Inquisition, alchemy and feudalism in all its glory?

Update: During the discussion, I had an idea that could get lost in the comments, so I put it:

I do not rule out that it will come to real “cases” with the participation of a “camel” in the lead role, I think most people do not want to be hunchbacked, but on the other hand, if you find out about such a lawlessness, are you ready to help repel the attack? (the first attempt at writing will be 99%) This is where it will be seen who believes in what and what is made of. Some will answer: “How can you help here, you have run into it yourself, and get out yourself,” that is, my hut is on the edge, but for some reason I am convinced that there will be many people who can help in this situation, and the safest and most effective help can be assembled through bitcoin. If the community does not protect itself from the first attempts to trample and eradicate, rubbish then the case is worthless then the cost to this community.

You are personally ready to support the non-profit organization aka “Foundation for the Protection of Decentralized Technologies”, because organizing such a fund with transparent reporting through Bitcoin addresses is not a difficult matter, provided that the founders are trusted. I am personally ready and more than just a peer-to-peer transaction. This idea came to me now, if anyone is interested, let's discuss.