Legal opinion on the possibility of carrying out operations on the exchange of cryptocurrencies to citizens of the Russian Federation and its subsequent use
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Главная / Аналитика / Legal opinion on the possibility of carrying out operations on the exchange of cryptocurrencies to citizens of the Russian Federation and its subsequent use
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Legal opinion on the possibility of carrying out operations on the exchange of cryptocurrencies to citizens of the Russian Federation and its subsequent use

Field of application of this legal opinion

  1. Compiled by Lawyers of the Russian Federation. Date 18 April, 2019
  2. The documents examined and the searches conducted by us are as follows:
    1. Federal law of April 22, 1996 «On the securities market» No. 39-FZ
    2. Federal Law of November 21, 2011 No. 325-FZ “On Organized Trading”.
    3. Civil code of Russian Federation
    4. Draft of Federal Law N 419059-7 “On digital financial assets and on amendments to certain legislative acts of the Russian Federation (on digital financial assets)”
  3. We also reviewed laws, decrees and regulations and examined any legal issues we considered necessary to prepare this legal opinion.
  4. The opinion expressed in this document is not a fact.
  5. This conclusion does not carry any contractual obligations and is made in accordance with the laws of the Russian Federation.
  6. This opinion is not intended and cannot detect fraud, misrepresentation, bribery, or corruption by any person.

List of documents examined by us

  1. In order to form an opinion, we examined the following documents:
  • Certificate of incorporation of the company from dd//mm//yy
  • Articles of Association of____________.
  • All other necessary documents for drawing up this legal opinion.
  1. In the process of drafting this opinion, we have not examined the contracts, documents, corporate records, which in any way relate to the company. Also, we did not make any additional requests regarding the activities of the company.
  2. Copies of all the above documents are attached to this legal opinion.

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Suggestions

This legal opinion is based on the following suggestions, which may not be true:

  1. Authenticity: The documents provided to us (including copies) are authentic, as well as stamps and signatures.
  2. Relevance of documents: The documents provided are valid at the time of this conclusion.
  3. Truthfulness: The requested documents were provided to us in full and in accordance with reality.

Opinion

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:

  • Cryptocurrency refers to the CFA;
  • As a general rule, the CFA is not a legal means of payment at the territory of  Russian Federation;
  • CFA is not recognized as an illegal means of payment outside  Russian Federation ;
  • The appeal should be understood as any movement of the CFA (purchase, sale, exchange, donation, transfer, use, etc.).

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Valid transactions:

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:

Permission

The essence

Terms of use

CFA exchange deals with qualified investors *

CFA owners are entitled to do:

  • transactions for the exchange of the CFA of this type of other types;
  • deals for exchanging CFA for rubles, foreign currency or other property.

Only through the operator of the CFA exchange (hereinafter - the Operator.

  • The operator must be the organizer of trade in accordance with the Federal Law of 21 November 2011 No. 325-ФЗ «On Organized Trading».
  • Transactions must be carried out in accordance with the Rules of the organized trading of the CFA, registered in the Central Bank of the Russian Federation.
  • The transaction is made by a qualified investor

Swap deal, the DSC is not a qualified investor

CFA owners are entitled to do:

  • transactions for the exchange of one type of CFA to another type;
  • transactions for the exchange of the CFA for rubles, foreign currency or other property.

Only through operator.

  • The operator must be the organizer of trade in accordance with the Federal Law of 21 November 2011 No. 325-ФЗ “On Organized Trading”.
  • Transactions must be carried out in accordance with the Rules of the organized trading of the CFA, registered in the Central Bank of the Russian Federation.

* 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"

Transactions with CFA outside the Russian Federation:

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.

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In the current legal concept to criteria pits oriented sites on the territory of Russia accepted to:

  1. the use of a domain name associated with Russia (.Ru,.Rf,. Su), and/or
  2. the presence of the Russian-language version of the site, created by the owner of the site or on his behalf by another person, and/or
  3. the possibility of execution on the territory of Russia of an agreement concluded on the site (delivery of goods, provision of services, use of digital content).

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.

Perspectives:

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.

Conclusion:

  1. The main purpose of the Law is to try to control cryptocurrency (at least to initiate this). Such control, according to the legislator, can be achieved:
  • by performing operations through operators - qualified investors , to which are very serious requirements.
  • by account transactions through operators who are not qualified investors provided that they conduct all operations through a special account using their cryptograph .

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.

Responsibility:

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.

CERTIFICATE OF QUALITY OF LEGAL OPINION

By signing this legal opinion, the Legal Advisor hereby certifies that in accordance with the information available to him:

  1. The facts concerning rules of law and stated in the legal opinion are true and correspond to reality.
  2. The analysis, judgments, conclusions and proposed measures contained in the legal opinion belong to the legal Advisor himself and are strictly valid within the limits set by those conditions and assumptions that are part of this legal opinion/
  3. The Legal advisor does not have any present or anticipated interest in the analyzed documents and prospective transactions and acts without prejudice and without prejudice in relation to the Client.
  4. The remuneration of the Legal advisor does not depend on the results of the legal opinion, as well as those events that may arise as a result of using the legal opinion contained in the conclusion by the Customer or persons whom he or she will acquaint with.
  5. Legal opinion was carried out and the conclusion was drawn up in accordance with the Regulations of Russian Federation.
  6. Opinion and conclusions made on the basis of legal analysis were obtained with the greatest degree of use of the professional knowledge and experience of the Legal Advisor and are, in his opinion, reliable and error-free.
  7. All the analyzed documents in copies were examined by the Legal advisor personally.
  8. This legal opinion is confidential and is made up for exclusive use by the Client and their representatives and is not intended for transfer to other persons.
  9. This legal opinion is made on the basis of the documents provided by the Customer.
  10. This legal opinion is made in 3 (three) copies having equal legal force, two of which are transferred to the Client, and the third remains in the archive of the law firm.

Yours faithfully,
General Director of  "Prime Legal" LLC
Candidate of Law Arik Shabanov

18 april 2019

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