In February 2018, the Arbitration court of Moscow (ASGM) in the case № A40-124668/17-71-160 f bankruptcy, Mr. Tsarkov declined to include in the bankruptcy estate of the debtor bitcoins, since they thought that the cryptocurrency is not the property or property rights.
Other courts prior to the passage ASGM challenged decision adhered to the similar point of view. For example, the district court in the Tyumen region found that “… crypto-currencies, including bitcoin, are money substitutes, contribute to the growth of the shadow economy and cannot be used by citizens and legal entities on the territory of the Russian Federation (Case number 2-776/2017).
This approach of the courts has divided lawyers into 2 camps. Some believed that as a General rule, bankruptcy law in the receivership estate included all the property of the debtor and cryptocurrency in the sense of article 128 of the civil code is of property (other property), the draft Federal law «On digital of financial assets» cryptocurrency and token are also recognized as property in the electronic form. Therefore, according to many experts, the court made an unreasonable decision.
Other experts felt that while not adopted a specific law, the court’s decision is justified. In practice, such an approach creates grounds for unscrupulous individuals, as it allows them to legally hide their assets in cryptocurrency.
Thus, for example in Amsterdam, the court in a similar dispute took the decision opposite to the decision of the Arbitration court of Moscow, and came to the conclusion that cryptocurrencies possess all the features of property rights (Case C/13/642655 FT RK 18.196).
Currently, the 9th Arbitration appeal court made a reasonable ruling, according to which a judicial act of the first instance has been repealed and adopted a new judicial act, according to which cryptocurrency was included in the bankruptcy estate of the debtor.
A very logical decision, as the arguments relied upon by the court of first instance in deciding not to include cryptocurrency in the bankruptcy estate, was inconclusive, and the court’s approach was rather formal. The motives of the court will be clear later, after making the decision in full (motivirovannoe part).
Also keep in mind that you need to obtain a judgment and execute it are two different Institute. That is why you need to consider that in practice it can be difficult getting access to the property. If the debtor refuses to voluntarily transfer the username and password to the exchange or e-wallet, you receive them will be very difficult process.
Now the question remains about the approach of the cassation and Supervisory instances to this issue. I believe that with high probability, the appellate court will be left to higher authorities in the force.
Today in the production of ships is already a lot of debate related to crypto-currency and tokens – the division of joint marital property, all sorts of investors ‘ complaints to the organizers of the ICO and the reverse situation, a claim to unfair exchanges and private sellers cryptocurrencies, etc.
However, only some time after the adoption of the Federal law “On digital of financial assets”, as well as the formation of jurisprudence, we’d probably get answers to most questions that arise and will arise in cryptonomicon. But we need to be clear that the way stakeholders will meet a lot of “gotchas.” While on many issues there is no simple answer, it is likely that members of the crypto community expect new challenges in the search for justice in the courts.