Legal Definitions of a Virtual Asset and Its Significance for Defining the Object of Criminal-Law Protection

Abstract

The article analyses the legal definition of a virtual asset under the Law of Ukraine “On Virtual Assets” No. 2074-IX in its relationship with the definition of the effective Law No. 361-IX and determines the significance of the identified conflict for establishing the object of criminal-law protection as of the beginning of 2023. It is established that Law No. 2074-IX, adopted on 17 February 2022, has not entered into force due to the absence of amendments to the Tax Code of Ukraine, while the definition of a virtual asset as an “intangible good” that it introduces diverges from the “digital representation of value” formula of Law No. 361-IX. The classification of virtual assets by the criterion of being backed (backed and unbacked, including financial ones) and the statutory prohibition on using virtual assets as a means of payment and an object of exchange are examined. The doctrinal debate on the legal nature of virtual assets is highlighted: it is shown that they are not covered by the existing categories of intangible goods under the Civil Code of Ukraine and require recognition as a kind of property or as a separate object of civil rights (sui generis). It is substantiated that the conflict of definitions and the qualification of a virtual asset as an intangible good create uncertainty in establishing the object of an offence and in qualifying acts under the articles on crimes against property and on the legalisation (laundering) of proceeds. A conclusion is formulated on the expediency of establishing the object of an offence on the basis of the effective definition of Law No. 361-IX pending the elimination of the conflict, the harmonisation of definitions and the application of criminal-law measures as a last resort (ultima ratio).