Comparative Analysis of Doctrinal Concepts of Legal Regulating Smart Contracts in Russia and Foreign States

Abstract

The article is devoted to a comparative analysis of legislation and doctrinal views expressed by jurists of different countries on the concept and legal nature of a smart contract. The smart contract is a new institution related to the use of digital technologies, which was not previously known either in foreign countries or in Russian law. That is why the authors have identified five different points of view on the concept and legal nature of a smart contract. A similar situation has been developed in legislations of those countries that have included the rules on smart contracts (ex., USA, Italy, Belarus). Such a large number of various points of view on the concept and the nature of a smart contract and on methods of legal regulation indicate the absence of a proper legal concept of smart contracts that would be able to adequately combine both technical and legal features of the technical and legal phenomenon under consideration. The aim of the study is a comparative legal analysis of the legislation and doctrines of various countries to determine the legal nature of a smart contract and to justify proposals for improving existing legislation, which will eliminate the main disadvantages of a smart contract application in practice. The subject of the study is Russian and foreign legislations about the legal regulation of civil law relations in cyberspace in general, and on the blockchain platform, in particular, also Russian and foreign doctrines regarding the legal problems of smart contracts application in civil circulation. Research methods: dialectical, formal logical, functional, and other general scientific research methods, and special legal methods: formal, logical and comparative. Results of the research: outside of legal regulation, a smart contract is a regular computer program that cannot be of a legal nature. It remains a technical solution, an innovation in the area of computer technology. A smart contract can be used for various purposes in law, including the usage in contractual practice. In case of using a smart contract in contractual practice, it is necessary to distinguish between a computer program and the legal relationship itself, i.e. contract. In accordance with aforesaid, the law can only regulate contractual relations, taking into account the technical features of a computer program that inevitably changes the contractual relationship. Depending on the objectives of legal regulation, a smart contract can be used as a way of executing a traditional contract, which can be concluded in simple written or oral form, or as a special non-independent contractual design that cannot be concluded separately from the corresponding contract type.