The Genesis of the Concept of Virtual Assets and the Object of Criminal-Law Protection

Abstract

The article traces the genesis of the concept of virtual assets within the legal framework of Ukraine and determines its significance for defining the object of criminal-law protection in the period between the adoption of the dedicated law and its entry into force. It is shown that the emergence of virtual assets resulted from the evolution of ideas about non-state means of storing value: from the technological prehistory (D. Chaum, A. Back, N. Szabo) and the ideological foundations of the Austrian school and crypto-anarchism to S. Nakamoto’s concept and the launch of the Bitcoin network. The evolution of international terminology is reconstructed - the shift from “virtual currencies” to “virtual assets” in FATF documents (2018–2019) and the consolidation of the corresponding formula. The national genesis of the concept is highlighted - from the qualification of Bitcoin as a money surrogate (2014) to the legalisation of the definition of a virtual asset in Law No. 361-IX (2019) and the adoption of the dedicated Law No. 2074-IX (2022), which for the first time qualified a virtual asset as an intangible good - an object of civil rights. The heterogeneity of the concept, which combines payment, commodity and investment dimensions, is established. It is substantiated that, as of mid-2022, the concept exists in two legal versions - the FATF formula in force (Law No. 361-IX) and the adopted but not yet effective civil-law formula (Law No. 2074-IX); until the latter enters into force, the definition of Law No. 361-IX should serve as the working concept for establishing the object of an offence, while criminal-law measures should be applied as a last resort (ultima ratio). It is argued that conceptual certainty is a prerequisite for the effectiveness of the criminal-law protection of virtual assets.