Blockchains, Smart Contracts, Decentralised Autonomous Organisations and the Law
Show Less

Blockchains, Smart Contracts, Decentralised Autonomous Organisations and the Law

Edited by Daniel Kraus, Thierry Obrist and Olivier Hari

The growth of Blockchain technology presents a number of legal questions for lawyers, regulators and industry participants alike. Primarily, regulators must allow Blockchain technology to develop whilst also ensuring it is not being abused. This book addresses the challenges posed by various applications of Blockchain technology, such as cryptocurrencies, smart contracts and initial coin offerings, across different fields of law. Contributors explore whether the problems posed by Blockchain and its applications can be addressed within the present legal system or whether significant rethinking is required.
Buy Book in Print
Show Summary Details
You do not have access to this content

Chapter 8: Perspectives of a distributed future: aspects of criminal law

Nadja Capus and Maëlle Le Boudec

Abstract

Virtual currency, or cryptocurrency, has become an important payment medium. Bitcoin is such a cryptocurrency and due to its importance, it is the primary focus of this chapter. It shall be discussed – from a Swiss criminal law perspective – which criminal offences may be committed with regard to this cryptocurrency, and which criminal law provisions may come into play in order to sanction the criminal behaviour. Some procedural aspects shall also be addressed – still based on the Swiss legal system as well as the relevant points of reference for the extra-/territorial jurisdiction under Swiss criminal law, which is an important aspect in particular with regard to the virtual nature of a cryptocurrency. Prosecution of offenders whose criminal behaviour involves bitcoins is limited in that bitcoins may not be the objects of any offence whose constituent elements require the presence of a movable good, since bitcoins have no physical equivalent in the form of coins or banknotes. ‘Theft’ of bitcoins is inconceivable under Swiss criminal law. But bitcoins fall within the scope of provisions related to data or with financial assets: therefore, offences committed in relation to bitcoins are prosecutable. However, current enforcement takes place barely by analogy and legal provisions will have to be developed to more adequately encompass bitcoin related offences. It is important to note that selling and purchasing bitcoins, as well as other activities relating to bitcoin trading platforms used for transferring funds or bitcoins, fall within the scope of the Anti-Money Laundering Act. We conclude, in sum, that virtual currencies do not evolve in a legal void, but it might become necessary to develop criminal law in order to capture more precisely the virtual nature and distinctive properties of cryptocurrencies. But, on the other hand, we observe that the actual lack of legal protection is precisely a consequence of the deliberate departure of bitcoin users away from government involvement towards a less regulated and less protected world, one that bitcoin users seem to seek. Asking than for an enhanced protection by criminal law would somehow be a paradox, as criminal law is the instrument of the monopolized public authority ‘par excellence’.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.


Further information

or login to access all content.