دانلود رایگان مقاله انگلیسی بعضی از خطرات نشانه گذاری و بلاک چین سازی در حقوق خصوصی - الزویر 2018

abstract

The paper focuses on the analysis of the problems that may be driven by mass tokenization of the objects of civil law, i.e. the creation of a digital representation of such objects in the form of a record in blockchain. This occurs where the value of such objects is transferred subsequently by means of disposal of such tokens, which is a subject of separate rights to it. The paper outlines two core problems, which were inspired by recent legislative activities in Belarus and Russia. The first is a possible displacement of existing legal regimes of objects of civil rights by the legal regime of the token. Secondly,the problem of definition of the nature of rights to tokens arises (in rem versus ad personam) as well as remedies for their violations. Provisions of the Belarus Decree “On the development of digital economy” of 21 December 2017 and drafts of the laws on blockchain and ICO, discussed in Russian Parliament and Government are taken to illustrate these problems.

4. The right to token: right erga omnes or right ad personam?

The nature of the right to a token is one of the key elements of its legal regime, since it defines remedies available, applicable provisions in bankruptcy proceedings, applicable connecting factors in conflicts of laws and other aspects of a legal regime.

Traditionally, from the period of Roman law, all civil rights were divided into rights in rem and rights ad personam. A right in rem is available against the world at large, i.e. it is valid against all persons generally (erga omnes). The right owner performs his right in rem by his own actions. No assistance from other persons is necessary.Thus,the essence of this right lies in the negative obligation of all other persons to refrain from interference in the enjoyment of that right. Therefore, any other person can violate such right.15 Taking into account the famous definition of privacy, rights in rem can be designated as a right to be left alone16 or the right to exclude others from one’s property.17 The most evident example of the right in rem is the ownership right. Third parties may never see the owner, hear about him, or even know if he has died and been replaced as owner by some other person. The only relationship to him is through the property, operating as some kind of mediator, in the sense that third parties may affect the owner only by acting towards his property in some way. The right holder is represented to them as an “owner” and his identity can remain completely obscure. Thus, no particular feature of an individual needs to be ascertained in order to comply with the passive obligation of non-interference. The right in rem is defined by reference to the existence and location of the thing itself and cannot survive the extinction of the thing.