Вас может заинтересовать: Подготовка правового заключения Legal Opinion.
This legal opinion is based on the following suggestions, which may not be true:
This opinion is based on the documents mentioned in the first, second paragraphs and the assumptions mentioned in paragraph three. In our opinion, the company is established and operates in accordance with its structure, laws and licenses of the Republic of Estonia.
The services provided by the company are provided by a legal entity registered in the territory outside the Russian Federation, in the Internet segment that is not Russian, as well as not having a Russian domain.
By virtue of Article 1 of the Project of the Federal Law N 419059-7 «About digital financial assets and on Amendments to Certain Legislative Acts of the Russian Federation (on digital financial assets)" (hereinafter - the Law) it regulates the relations arising from the creation, production, storage and handling of digital financial assets, as well as the exercise of rights and performance of obligations under smart contracts.
Ownership of this property is verified by making digital entries in the register of digital transactions. CFAs are not legal tender on the territory of the Russian Federation.
In this case, a digital transaction is an action or a sequence of actions aimed at the creation, issuance, circulation of digital financial assets.
The following conclusions can be drawn from the analysis of the above mentioned legislation:
Возможно, вас заинтересует: Абонентское юридическое обслуживание иностранных компаний.
The legislator establishes a general ban on the CFA on the territory of the Russian Federation (Art. 2). At the same time, the Law makes an exception to the general rule, fixing in Article 4 features of the appeal of the CFA, among which, in particular:
CFA exchange deals with qualified investors *
CFA owners are entitled to do:
Only through the operator of the CFA exchange (hereinafter - the Operator.
Swap deal, the DSC is not a qualified investor
CFA owners are entitled to do:
Only through operator.
* The conditions for referring an investor to qualified are determined by article 51.2 of the Federal Law of April 22, 1996 N 39-ФЗ “On the Securities Market” (credit, clearing organizations, etc.).
Thus, at the territory of the Russian Federation, transactions with the CFA are generally prohibited, however, they are allowed to be exchanged by qualified and unqualified investors on the above conditions. It is an erroneous conclusion that if Article 4 of the Law does not expressly prohibit it, then permission is expected.
Such a conclusion is directly refuted by the prohibition established by Article 2 of the t Law. In other words, in this case, the principle "Everything is forbidden that is not directly allowed"
The Law does not affect or prohibit transactions outside the Russian Federation.
However, it should be noted that in order to understand whether these standards apply to Estonian company must take into account the so-called criteria of direction is carried out online activities.
In particular, we are talking about when foreign companies provide services solely in the interests of consumers (counterparties) from certain states. In this case, as a rule, the requirements of the Law will be extended to such foreign organization.
For example, in one of the famous cases, the court found the defendant’s argument untenable (LinkedIn Corporation) that a foreign company is not subject to the provisions of Russian law. According to the court, the activity on the Internet due to its cross-border, decentralized and virtual nature does not allow to clearly define the geographical boundaries of such activities, therefore, it is possible to apply special norms of civil legislation to it.
According to the court, the rules of article 1212 of the Civil Code of the Russian Federation on the choice of law to be applied to the contract with the participation of the consumer, which provides for the application of Russian law on the basis of such a criterion as the direction of activity of the consumer’s counterparty (professional party) to the territory of the country (Russia).
The focus of the Internet site www.linkedin.com on the territory of the Russian Federation indicates the presence of the Russian-language version of the Internet site, as well as the use of advertising in Russian, which indicates the inclusion of the Russian audience in the business interests of the site owner - the professional side.
Вас может заинтересовать: Абонентское юридическое обслуживание бизнеса.
Thus, if an Estonian company has a Russian-language website or Russian advertising, then with high probability such activity will be recognized as activity in the territory of the Russian Federation and the requirements of the Law will apply to such activity.
Most experts believe that the Law is "raw" and requires significant improvements. It is hard not to agree with them. Moreover, the Bank of Russia raises objections to the permission for the exchange of the CFA. According to the Bank of Russia, the permission for the exchange will make it possible to legalize questionable transactions carried out earlier, which opens up new opportunities for unscrupulous participants.
In our opinion, the Bill will undergo a large number of changes and, most likely, precisely in terms of the CFA exchange.
In both cases, the operator must be the organizer of trade in accordance with the Federal Law of 21 November 2011 No. 325-FZ “On Organized Trading”.
As we can see, in the first and in the second case it is achieved by control of the commission of the exchange transactions with cryptocurrency. In all other cases, the circulation of cryptocurrency (any transaction) at the territory The Russian Federation is prohibited (cryptocurrency is not recognized as legal tender). This means that even operators (incl. And qualified) cannot be paid for services, because only exchange allowed.
If transactions with a cryptocurrency are carried out outside of the Russian Federation, then the Law does not apply to them, except in cases where the company’s business, which is engaged in such transactions, is directed to the territory of the Russian Federation.
At the moment, there is no ban on such transactions and the Law does not imply any deadlines for its adoption. Informing about the prohibition of the use of cryptocurrency on the territory of the Russian Federation is not mandatory.
This opinion on the company and its activities was compiled at the request of the addressee of this opinion. hereinafter referred to as “Beneficiary”. This opinion cannot be used by a third party, without the knowledge of the Beneficiary. Also, this opinion can not be used by employees of the Beneficiary, without the prior written agreement of the Beneficiary. The beneficiary may provide this opinion to the bank, acquirer or regulator, as appropriate.
By signing this legal opinion, the Legal Advisor hereby certifies that in accordance with the information available to him:
General Director of "Prime Legal" LLC
Candidate of Law Arik Shabanov
18 april 2019
Вас может заинтересовать: Представительство в арбитражном суде.
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