Risk of non-fulfillment of obligations by participants of investment deals: preventive civil law mechanisms for the protection of rights

Abstract

Introduction. The article is devoted to the study of legal mechanisms to protect the rights of participants of remote-digital transaction, made by a private investor (individual) and a legal entity (investment intermediary, investment recipient) with a particular object of investment and related to the real contracts. Violations of the rights of the parties to the transaction are most often associated with the stage of completion of such transaction and are a consequence of untimely and/or incomplete return of the invested money, failure of the counterparty-debtor to fulfill its obligations immediately upon receipt of money from the investor - upon transfer of the investment object itself. Failure to pay the promised income naturally gives rise to a conflict. Meanwhile, the existing nowadays tools of financial security of entrepreneurial projects objectively can not fully meet the current needs of business entities, and new objects of investment still poorly studied in terms of legal science, require the definition of their legal characteristics and the establishment of the legal nature.Materials and methods. The methodological basis of the study was materialistic positivism combined with the application of general scientific methods of knowledge. Including: dialectical method, formal-logical, analysis, synthesis, deduction and induction, methods of hypothesis, analogy, etc. Particular scientific methods are applied in the work, such as: historical and retrospective method, functional, statistical. Special methods of cognition of legal science are also applied: comparative-legal, the method of systemic research, formal-legal, etc. The work also used the method of legal modeling, which allowed to form the structure and functional elements of civil-legal model of prevention of non-fulfillment of obligations by participants of remote-digital investment transactions in the information space, protection of their rights and legitimate interests.The normative legal base of the work consisted of the provisions of existing legislative acts. Among them: Federal Law of the Russian Federation from 07.02.1992 № 2300-1 "On protection of consumer rights"; Federal Law of the Russian Federation from 23.12.2003 № 177-FZ "On insurance of deposits in banks of the Russian Federation"; Federal Law from 31.07.2020 № 258-FZ "On experimental legal regimes in the field of digital innovation in the Russian Federation"; Federal Law of the Russian Federation from 13.07.2015 № 224-FZ "On public-private partnership, municipal-private partnership in the Russian Federation and amending certain legislative acts of the Russian Federation" and others.The empirical basis of the research were materials of judicial and arbitration practice (for example, Ryazhsky District Court of Ryazan Region; Arbitration Court of Moscow; Ninth Arbitration Court of Appeal of Arbitration Court of Moscow; Zavodoukovsky District Court of Tyumen Region; Tyumen Regional Court, etc.), as well as statistical data published on the official websites of business entities (for example, PJSC Mosbirzhi, American consulting firm "Satis Group" LLC and others).Theoretical basis consisted of the works of domestic (A.I. Goncharov, A.O. Inshakova, L.A. Novoselova, A.I. Saveliev, E.E. Frolova, Y.S. Kharitonova and others) and foreign scientists (V. Akella, Bin Ke, Y.K. Dwivedi, Donghui Wu, L. Hughes, S.K. Misra, N.P. Rana, V. Raghavan, Jun Chen, Zhifeng Yang, etc.) in the corresponding field of research.Research results. As a result of the study, it was found that modern remote digital technologies have gained popularity and are already justifying expectations in the information space. Meanwhile, the token market turned out to have a huge number of so-called "scams" - fraudulent projects whose purpose is to raise funds by deception; in reality, such organizers of investments only created the appearance of implementing a project without any intention to put it into practice. It was also found that many authors, both Russian and foreign, in the modern period pay attention to such modern information technologies as distributed registry technology (blockchain) and smart-contract technology. However, in the scientific developments of colleagues there are no recommendations for specific construction of a civil law model of interaction between participants of remote digital transactions in the information space on the basis of a combination of distributed registry (blockchain) and smart contract technologies.Discussion and conclusion. On the basis of modern information technologies it is proposed to organize and regulate the turnover of investment objects in the information space in such a way that the very need to protect rights would disappear since it is impossible to violate them. For the prevention of violations and at the same time the protection of rights it is recommended to use in combination the technology of a distributed register (blockchain) and the technology of a smart contract. Fundamentally important model elements of such a system of violation prevention and protection of rights of participants of remote-digital investment transactions are outlined. The key feature of the proposed Universal Digital Platform for Private Investors is its versatility. It is proposed to combine in one such platform and a financial platform for financial transactions, and an investment platform for the turnover of utilitarian digital rights, and an information system for the turnover of digital financial assets, digital currencies. As standard contractual structures it is recommended to develop standard smart contracts for each object of investment: 1) uncertified securities; 2) digital rights; 3) utilitarian digital rights; 4) digital financial asset; 5) digital currency; 6) futures contract. This task is recommended to be solved by the Bank of Russia through public procurement. Each such standard smart contract, being a computer program, must provide for the possibility of its interfacing with the hardware and software complex of the Moscow Exchange.The article substantiates the necessity of introducing amendments and additions into the Federal Law of 23.12.2003 #177-FZ "On Insurance of Deposits in Banks of the Russian Federation". In conjunction with the proposal of standard smart contracts it is proposed to form their software algorithms with a clear construction of legal structures corresponding to repo and escrow contracts. The new notarial action in the process of registration of remote digital investment transactions and the new legal construction of the transfer of a thing to the notary's security deposit are proposed.It is proved that polysubject jurisdictional block-chain in remote digital transactions on the Universal Digital Platform for Private Investors should be implemented according to a 6-node scheme of interaction between entities operating in and under the jurisdiction of the Russian Federation. Risk factors for the implementation of remote blockchain registration of transactions with special investment objects are highlighted. Among such factors are argued: technical factors; economic factors; institutional factors.It is concluded that the civil law model of prevention of defaults of participants of investment transactions and protection of their rights in a systemic relationship integrates a number of special elements. First, public-private partnership; second, the use of experimental legal regime in the field of remote-digital investment transactions; third, a set of standard smart contracts - differentiated by type of investment objects; fourth, innovative legal structures for remote-digital investment transactions; fifth, polysubject jurisdictional blockchain, implemented by a 6 node scheme of interaction of entities operating in and under the jurisdiction of the Russian Federation; sixth, a methodological set of prevention of potential conflicts between participants of remote-digital investment transactions, a systematic set of ways to protect their rights.