Criminal legal regulation of the blockchain functioning sphere in Russia: challenges and barriers

Research background. Despite the enormous attention of the scientific community, legislators, and law enforcement officials to the development and implementation of measures to combat cybercrime, the sphere of blockchain functioning and cryptocurrency circulation remains outside the scope of most criminal law research. This causes perplexity in the context of the desire of state bodies to introduce blockchain technology in many significant areas of society, as well as to introduce a regulatory framework dedicated to the issues of private and public legal regulation of digital financial assets. Concerns are also caused by the increase in the number of cybercrimes and the increasing involvement in them of the blockchain technology and virtual currencies, the circulation of which is carried out based on blockchain. The need to study the prospects for criminal law regulation of the blockchain functioning spheres in the territory of the Russian Federation becomes more and more obvious in such conditions. Study objective: to identify and to study the main challenges (problems) for modern criminal law regulation of the blockchain functioning sphere, possible barriers (obstacles) that reduce the effectiveness of such regulation, as well as potential directions for responding to these challenges and overcoming such barriers. Methods: formal legal and comparative legal research methods are widely used in conjunction with systemic, logical, and philological methods of interpreting the norms of law. The empirical part of the study is based on the investigation of judicial and other law enforcement practices, as well as transcripts of meetings of the State Duma of the Russian Federation and information from the media about criminal offenses that have become widespread in the sphere of blockchain functioning. The analysis of modern foreign and Russian scientific literature relevant to the selected research topic is carried out. Results and novelty: it is the first time that comprehensive analysis of the challenges of the current stage of the blockchain functioning sphere development, as well as legislative, law enforcement, doctrinal, and social barriers for creating a system of effective and comprehensive criminal law regulation of the named sphere, is carried out. The author’s concept of the directions of responding to the analyzed challenges and overcoming the corresponding barriers is presented.


Introduction
According to the Prosecutor General of the Russian Federation I. Krasnov, the number of crimes in the field of information technology has increased by 25 times and amounted to 294 thousand over the past five years, while only a quarter of them was solved [1]. At the same time, the Prosecutor General paid special attention to such features of modern cybercrime as the emergence of new methods of data encryption that maximize the anonymity of criminal actions, as well as the widespread criminal use of cryptocurrencies [1]. These data are of even greater interest in the light of recognizing the blockchain technology at the state level as a breakthrough digital technology capable of influencing the global financial system, the significance of this technology as well as other encryption and crypto protection technologies as conditions for the development of the electronic industry of the Russian Federation (based on the texts of orders of the Government of the Russian Federation dated August 14, 2019 No. 1797-r and dated January 17, 2020 No. 20-r). Moreover, from January 1, 2021, Federal Law No. 259-FZ of July 31, 2020, designed to regulate the sphere of circulation of digital financial assets, comes into force. In such conditions, the questions of whether the Russian criminal legislation is ready to regulate relations arising in the sphere of blockchain functioning, and what obstacles may the Russian lawmaker and law enforcement face in the process of developing this area of relations naturally arise?

Methods
Formal legal and comparative legal research methods are widely used in conjunction with systemic, logical, and philological methods of interpreting the norms of law to study the provisions of Russian and foreign criminal legal and non-branch legislative acts. The empirical basis of the study was the judicial and other law enforcement practices of the Russian Federation, transcripts of the State Duma of the Russian Federation, as well as the information posted on the media about criminal offenses that have spread in the sphere of blockchain functioning. Particular attention is paid to the analysis of Russian and foreign criminal law and criminology literature to establish trends in scientific research on the topic under consideration. Table 1 shows main results.

Discussion
Currently, there are entire communities of professional cybercriminals who support the illegal acts of "non-professional hackers", for example, Ransomware-as-a-Service (RaaS) [2]. The doctrine of criminal law does not contribute to the formation of unity in legislative and law enforcement practice. So, the sphere of blockchain functioning and cryptocurrency turnover is either not considered at all as an object of criminal law research [3,4], or these areas are considered only as areas of the spread of crimes against property or computer information or individual groups of economic crimes [5,6]. Most foreign scientists pay attention only to the technical side of the issue. The legal aspects of blockchain and cryptocurrencies are given attention only from the standpoint of financial, economic, or tax law [7]. At the same time, attention should be paid to the predominantly criminological [8][9][10] with economic or statistical inclusion [11][12][13] or criminal procedure [14][15][16] biases of the relevant foreign studies. The question of the criminal liability scope remains without scientific discussion. This concerns not only sanctions for crimes against computer information but also means of individualizing responsibility. So, according to clause "k" of part 1 of Article 63 of the Criminal Code of the Russian Federation, the use of specially manufactured technical means is recognized as an aggravating circumstance, but nothing is said about the use of special skills and knowledge (for example, in the field of encryption and programming).

Conclusion
Areas of responding to challenges and overcoming barriers are shown in the Results table.
Only the simultaneous implementation of these areas can guarantee effective and consistent criminal law regulation of the sphere of blockchain functioning and the turnover of cryptocurrencies. The results of this study can be useful in formulating the directions of Russia's criminal law policy in the field of combating cybercrime and improving the practice of applying the provisions of the Criminal Code of the Russian Federation. The study of the selected topic should be continued, for example, by studying the criminological aspect of the relevant topic, as well as foreign and international law enforcement practice.
The reported study was funded by RFBR, project number 20-011-00823.