Juridicização dos criptoativos : a natureza jurídica das criptomoedas e dos contratos inteligentes

Abstract

The general purpose of this research consists of a critical investigation about the legal meaning, the legal nature, of cryptoassets. We seek to apprehend whether these disruptions, legitimate Schumpterian innovations, should be understood under the classic categories of thought - e.g. currency, financial asset, commodity - or if, in fact, the disruption would be so innovative that it would imply a necessary recognition of a sui generis legal nature. More specifically, due to methodological aspects of pragmatic relevance, the vertical digression takes as its paradigm the case study of the Bitcoin project – ideal type of currency token – and the Ethereum project; ideal type of utility token leading to smart contracts. In the quest for clarification, the genealogy of innovation is considered, problematizing its legitimate dialectical-social roots, with criticism of notorious common sense narratives, and didactically exposing the technicality of innovation. Immediately, the digression is verticalized in cryptocurrencies, problematizing their monetary pretensions under two distinct but complementary axes: an analysis of economic inconsistencies and an analysis of socio-legal inconsistencies. Then, focusing on the field of Ethereum, the historicity of the smart contract is rescued, its fundamental concepts, exposing the interconnection between the Solidity language; Turing Completeness Problem; multiple signatures and Ethereum, reaching, with the Teoria Ponteana do Fato Jurídico, which contexts are liable to the existence of contractuality in the smart contract code; what are the related challenges relevant to the validity plan - Lex Cryptographica - and to the effectiveness plan in smart contracts. Finally, integrating the entire digression, based on a critical-qualitative compilation of contemporary bibliography, all the pertinent national legislative process on the subject is mapped, problematized in view of the doctrine and exposed to clarify the Brazilian position towards the general problem of the research, in addition to to identify possible new horizons for future work.