Transformation Of General-Theoretical Category "Offence" In The Internet Era

Problems of definition of the subject of offense

By the general rule the subjects of offenses are natural persons and legal bodies. But in the Internet space it is often impossible to define these persons. There are some examples.

Today in the Russian Federation in the sphere of electronic money there are services such as Yandex.Money, WebMoney, Visa QIWI Wallete. Unlike Yandex.Money and Visa QIWI Wallete which services are represented by credit institutions with the appropriate bank license the WebMoney service is carried out on behalf of the Owner and Administrator of the System - the WM Transfer Ltd company which interests are represented by the administration company – the International lawyer company UAB "DEED BALTIC" with the registration address in Lithuania. As Guarantors of system activity there are some more legal bodies registered in different countries which, according to the message on the website, store values of various legal nature. The developer of the WebMoney system is JSC “Vychislitelnye sily”. The guarantor of the calculations in the title signs WMR which are conditionally a ruble equivalent has changed in recent years.

It was LLC VMR in 2017, then in September 2018 it is SANTIKA BUSINESS GROUP INC with the address in the Seychelles. On the website of the WebMoney service it is directly specified that "the WebMoney Transfer system is not responsible for violation of the financial, material and any other liabilities existing between its participants. Being the hardware-software tool, the system doesn’t control the procedure of observing any interest when transactions are carried out and cannot interfere with the operations irrespective of their purpose" (https://www.web.money/rus/legal/warning.shtml). By means of such notice the owners, the administrator and the guarantors of the system discharge themselves from any legal responsibility, transferring it entirely to the users of the system.

Nevertheless, according to us, situations when offenses and harm are caused not by users of the system, but other persons are possible, to establish precisely which is problematic. In particular, in case of program and system mistakes, errors of identification by the Guarantor, etc. There is a question - who will be the subject of offense, owing to the fact that the legal nature of the WebMoney system remains beyond the scope of any national legal system.

It is worth noting that in a card file of arbitration cases of the Electronic Justice system there is no information on any claims to the developer of JSC “Vychislitelnye sily”, Guarantors of WMR and the Administrator of the system. But it doesn’t mean the lack of offenses when using the system, it means difficulties with law enforcement.

The second problem of electronic payment service providers is anonymous e-wallets according to Elchaninova (2015).

The personified means of payment is such means on which the operator identified the client (Art. 10 of the Federal Law "On the National Payment System". Depending on the procedure of client identification which means finding out certain information about the person (physical or legal) there are several options of e-wallets in electronic payment service providers:

• anonymous,

• anonymous nominal,

• personified,

In the Russian Federation the requirements to the procedure of identification are established by the Federal law "On Counteraction of Legalization (Washing) of Income Gained in the Criminal Way and to Terrorism Financing" and other normative legal acts of the Central Bank of Russian Federation and Rosfinmonitoring.

The WebMoney service uses the certification of users, it means the digital identity certificate approved by the analog of the autographic signature of the participant of the WebMoney system. There are 3 types of the certificates, two of which belong to anonymous or conditionally personified and only one – to personal. At the same time the identification of the system user is carried out by its own rules by natural persons – personalizers and registrars (by the same users of the system who have certain rights and duties). So, it is impossible to mean the existence of the personified electronic payment tools in the system.

It is impossible to determine the subject of offense by this reason if he is a user of an anonymous wallet – the payment service provider can have no personal data of the owner, and data can be fictional. Use of anonymous wallets undermines financial and economic activity of the Russian Federation by taking away money in "shadow". For example, now by means of e-wallets freelancers’ services are paid, therefore the employer and the freelancer do not charge and does not pay any taxes and fees from the sums of money transferred to the freelancer as payment. In practice, accepting money onto anonymous wallets is carried out also by legal bodies without its transferring to the status of corporate money. It is widespread when paying in online stores therefore the legal body has revenues which are not reported in accounting and taxing. In the context of regionalization of the world economy connected with the growth of number of international economic relations we see the increase of the role of creating associations of regional integration for successful representation and protection of interests of their countries in the world.

Undoubtedly, our point of view on the difficulties in the definition of the subject of offense will face criticism which focuses that behind each offense on the Internet anyway there is a natural or legal body. But it is not so. With the development of technologies many functions are performed by "artificial intelligence" - robots. In the Russian Federation the system of legal regulation of robotics is starting to develop. Now normative legal acts that define the concept of legal responsibility of robots haven’t been adopted yet. In spite of the fact that doing some actions the robot can directly do harm, there is the tendency that natural and legal bodies are considered to be responsible for it: creators, owners and other persons who operate the robot. So, the robot itself is delictual and cannot bear responsibility for the harm it does. Meanwhile, in modern domestic literature often "delictuality" is allocated as sign of offense. All persons who reached the certain age and who don’t have certain mental disturbances are considered to be delictual (Valiaeva, 2016).

On the example of the robot that has the artificial intelligence and that is able to make decisions independently and to do harm, it is visible that neither the age, nor sanity and delictuality in general can be the sign of offense made by the robot. It implies that and the structure of offense, namely the concept of its subject, in the next years will qualitatively change.

Signs of illegality and legal responsibility in the offenses committed on the Internet

In domestic legal science there are several approaches to "illegality". Y. E. Pudovochkin considers necessary to consider illegality from two aspects – objective and subjective. From the objective point of view, the illegality is a violation of certain legal benefits, forbidden by this or that branch of law. The subjective point of view of illegality is characterized by the action or inaction of the subject (Pudovochkin, 2018).

We pay attention to the point of view, that is widespread in legal science, according to which the illegality means both the violation of the normative legal act, and non-performing the duty assigned to the subject both by the normative legal act, and the contract. So, the illegal behavior in the form of action is expressed in performing active actions forbidden by the law or the contract; the illegal behavior in the form of inaction is expressed in passive evasion to perform the duty which performance is assigned to the person by the law or the contract (Senglyaeva, 2018).

In our opinion, the illegality is an obligatory element of offense that should be read in the sense of violation of normative legal acts and agreements of subjects of law by which their rights, duties and measures of legal responsibility are defined as such agreements have to be based on the provisions of normative legal acts and shouldn’t contradict them.

Allocation of punishability or legal responsibility as an obligatory sign of offense is typical for all western countries today. F. Babich considers punishability to be an obligatory component of illegality, that is expressed in certain threat to apply measures of public enforcement (Babich, 1995). E.A. Belikh emphasizes the element of punishability for one and all offenses in spite of the fact that directly specifies measures of public enforcement only for criminal actions (Belikh, 2016). Considering such element of offense as punishability, V.V. Butnev, first of all, pays attention that in criminal law the term "punishability" is often substituted for "punishment". He thinks that "punishable is subjected to punishment and it is punished" (Butnev, 2008, p.47). However, the scientist thinks that the punishability is an element of criminal offense but does not make conclusion about its connection to other types, considering the concept of "legal responsibility", but not punishability.

T.A. Mychak emphasizes "normativity" as when the deed is recognized as offense, this always has the regulatory form; out of the legislation there cannot be offenses (Mychak, 2015). A.M. Smirnov ‘s point of view seems to be interesting that the crime dialectically does not assume punishment but only forms the basis of a criminal responsibility (Smirnov, 2018).

The sign of punishability is characteristic of crimes, administrative and disciplinable offenses. Legal responsibility for other branches of the law is provided in sanctions, but not punishments. Punishment is one of the types of legal responsibility and for this reason the category "legal responsibility" as a sign of offenses is justified to be used.

However, the development of trade on the Internet challenges our conclusions.

For example, the Russian company makes the exclusive distributor contract with the Korean producer to deliver cosmetic production to the Russian Federation. Within the distributor agreement of the Russian company also the exclusive rights are transferred to the trademark of the Korean producer. Together with it the Korean company carries out activity in Korea reselling the above-stated cosmetic production in online store. Any person, regardless of nationality and the residence can buy cosmetics. The Korean company within the signed contract of retail purchase and sale carries out sending production to any point of the world, including the Russian Federation. As a result, the rights of the Russian company for exclusive distribution of goods are violated.

Proceeding from the definition given by us, there is no illegality if we consider the situation from the point of view of the Korean company– the bargain of retail purchase and sale is concluded in a place of company registration (that is in Korea), the requirements of Korea legislation are observed. The Korean company did not conclude any agreements limiting goods distribution therefore there is no illegality in its actions. The Russian company has different point of view as within the Russian legislation both the exclusive rights to the trademark (introduction to civil circulation of goods with the trademark on them), and the rights for exclusive distribution are broken.

In modern legal literature there is an issue where transaction on Internet purchase is made and therefore which law is applied. E.A. Makhinya notes that "the main category here is the place of living or the place of performance of the party which performs the activity that is crucial from the point of view of content of the contract. On the Internet the definition of these concepts in that form in which they are attached in international agreements and conventions, internal laws of various states, is quite problematic" (Makhinya, 2013). The author suggests proceeding from defining the place of transaction from the address of the website and its placement on the server in this or that country. According to Y.M. Baturin’s opinion, distribution of national jurisdiction in the Internet is necessary, namely sovereignty over its national segment is necessary (that is the domain) (Baturin, 2000). In that case, domain "ru" will get under the legal system of the Russian Federation, but the issue regarding international domains, such as "edu", "int" is still open, etc. (Haliullin, 2012).

According to our opinion, it is necessary to start from the place of goods and services payment. If the goods go cash on delivery, then the place of transaction is the location of the buyer where he received and paid goods. In case of payment of goods and services "online" the place of transaction is the location of the seller.

From there also the sign of punishability or legal responsibility in the concept "offence" challenges a question as the activity of the Korean company within its national legal system is legal, the place of "online" transaction is Korea.

Except the problems with illegality and legal responsibility for offenses at Internet trade, there are difficulties with the subject of offense. First, in most cases it is rather difficult to define them. Information on the administrator of a domain name is often hidden, or there is no any information about the seller of goods and services on the website of online store or it can be fictional. At the same time, it is impossible to define if the subject who operates the transaction has the right to do it, it means to confirm bargaining power. K.I. Kravchenko notes that the citizens who are recognized by the court as incapacitated can make bargains on the Internet, in reality they are limited capable in the rights to make similar bargains, however it is impossible to trace it at Internet trade (Kravchenko, 2015).

Results of the real research can be used in practical work of legislative authorities of the Russian Federation and the international organizations. Theoretical conclusions of the research can be used in research institutions, in higher educational institutions when teaching certain sections of the subjects: "Theory of state and law", "Constitutional law", "Administrative law", "Financial law", "Tax law", "Criminal law", "Civil law".