En vetenskaplig studie om kryptovaluta i ljuset av svensk sakrätt : Bitcoin – sakrättens kryptonit?

Sammanfattning: Access to finance is often a vital tool for a company to make investments which in turn leads to increased generation of income. In 2022, the amount of lending to non-financial companies increased by around 13 %. Banks' traditional lending channels have recently been challenged by DeFi. Within DeFi, no central intermediary is used, the security provided is cryptocurrencies and the transaction history is public. The most common cryptocurrency used in DeFi is bitcoin. At the time of writing, bitcoin has a market capitalization of approximately $521 million. The use of DeFi has grown rapidly in 2022 as cryptocurrencies worth just under $110 billion were pledged in DeFi as collateral for credit. The EBA has previously warned about the risks of cryptocurrencies. Despite warnings, neither case law nor any clear legislation regarding cryptocurrencies and creditors protection has thus been created. Though, there is a proposal from EU that will create a uniform regulation for cryptocurrencies that are not currently covered by the EU's existing regulatory framework for financial services, the so-called MiCA regulation. In Swedish legislation, there is an ongoing investigation on how to handle cryptocurrencies. However, neither the proposals at EU-level nor national level deal with substantive legal aspects such as creditors protection. The purpose of the thesis is to present a proposal for what bitcoin as property is classified as according to Swedish law and to identify the most appropriate legal aspect when bitcoins are used within DeFi. Based on the purpose, the following questions arise (i) What type of property should the cryptocurrency bitcoin be legally classified as? (ii) How can creditor protection be achieved when a transaction with bitcoin is made? (iii) How can creditor protection be achieved when bitcoin is used as collateral? In this thesis, the legal dogmatic method and law analogies will be used to answer the questions. The conclusions are that bitcoin should first be seen as a financial instrument according to MiFID II and creditor protection in the case of acquired ownership of bitcoins can basically never be achieved. Creditor protection in case of retained ownership can be achieved with analogous application of RVL and using registration as an element of property rights. When bitcoin is used as collateral, creditor protection can be achieved through the property right element of registration or tradition. In the case of three-party escrow, notification of transfer of claim must be made to the person who holds the pledged property in accordance with the 1936 Pawn Law.