The legal nature of cryptoassets and their protection under property law

Damia Patiño, Gregorio

The legal nature of cryptoassets and their protection under property law

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Citació

Damia Patiño, G. The legal nature of cryptoassets and their protection under property law. 2023. handle: http://hdl.handle.net/10230/58357

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Resum

The digital revolution has produced a dematerialization of the economy and the rise of new digital assets such as Cryptoasssets. Legal operations involving cryptoassets, particularly bitcoin, are controversial and do not fit properly in any existing legal category, thus, there are many legal uncertainties still unanswered. While lawmakers around the world have focused their attention on the regulatory aspects of Bitcoin, the most fundamental question remains largely unanswered: what is the legal nature of cryptoassets? The aim of this paper is to try to answer the question from a property law perspective and to analyze whether a bitcoin can be considered as an object of property law. Regarding the Common Law system, I argue that a bitcoin can be considered as personal property, however, it is a matter of discussion whether the creation of a third category is necessary or whether it is enough to rationalize the choses in action category. In Civilian Systems there are two different predominant property systems: the French and the German. French modelled systems recognize the possibility of considering an incorporeal as a thing capable of being an object of property law, however, their scope and definition remains unclear and Civil Codes offer little information about it. On the other hand, German modelled systems restrict the notion of a thing to only tangible and corporeals objects. I argue that a bitcoin should be protected by civilian systems as a thing, based on a functional analysis focused on the characteristics of the object rather than in the previous existing categories.