Technical progress and certain problems of Civil Law

Abstract

One of the consequences of the industrial revolution is the dematerialization of traditional objects of Civil Law (money, securities, precious metals), that is, they lose their usual material form and turn them into a number on the account. In addition, technological progress has led to the emergence in the economic circulation of new objects of Civil Law, which, in principle, cannot have a material form, being intangible property (digital currencies, digital assets, digital financial assets, crypto assets, etc.). Meanwhile, legislation and civil science were unable to adapt the theory of Civil Law and legislation to the new economic realities. So, the subject of the loan agreement in accordance with Art. 807 of the Civil Code of the Russian Federation must be transferred by the lender to the ownership of the borrower. Meanwhile, judicial practice has recognized for a long time that it is possible to lend non-cash funds and non-documentary securities, although they are not things. Digital assets are quite often qualified by Russian civil lawyers as rights of obligations (claims). However, in some cases it is rather difficult to find such an entity to which it would be possible to make any claims (for example, bitcoin and ethereum). The solution to these problems, according to the author, is to clarify the types of legal relations that arise in connection with the considered intangible property. For example, with regard to non-cash funds, there are two types of civil legal relations. Firstly, the legal relationship of the client with the bank under a bank account agreement, which is a relative legal relationship (civil obligation), respectively, non-cash funds - the rights (claims) of the client to the bank to make transfers and to issue cash. Secondly, we are talking about the legal relationship of the account holder with all third parties, in which all third parties are obliged to refrain from violating the right of the account holder to the funds belonging to him, and the account holder has the right to require them to fulfill this obligation, and can also protect right through absolute claims. With regard to new objects of Civil Law (digital property), such as digital assets, digital financial assets, digital currency, crypto assets, etc., several types of legal relations also arise in economic circulation. Firstly, in relation to digital property, legal obligations arising from a contract of sale, exchange, etc. may arise. Secondly, this digital property may be the object of an absolute legal relationship between the owner of such property and all third parties, in which the owner of digital property can own, use and dispose of digital property in the most absolute way, and all third parties must refrain from violating this absolute right. This absolute right is not a property right, since digital property is not a thing. This is a new absolute right, which should be regulated by Civil Law, just as the exclusive right to the results of intellectual activity was regulated in its time. Arguing in this way, it is permissible to recognize that the subject of a loan agreement can be any property, both having a material form and res incorporales, which can be transferred to the lender either in ownership as a thing, or with the simultaneous transfer of another absolute right to him if the object is intangible.