اعتبار داد و ستد رمز ارز و تحلیل دعاوی مرتبط با آن (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
رمزارز ابزار نوینی است که سودای جایگزینی با پول را دارد و گاه به عنوان کالا یا وسیله پرداخت دین میان شهروندان دادوستد می شود. هرچند قانونگذار مبادله رمزارز در مراودات داخلی را ممنوع ساخته، اما خریدوفروش آن در میان بخشی از مردم رایج است؛ بنابراین لازم است نخست تکلیف این گونه معاملات و سپس نوع واکنش مراجع قضایی در قبال دعوای بر رمزارز را از میان مقررات و در سایه اصول کلی حقوقی بیابیم. در واقع این نوشتار در پی یافتن پاسخی برای این پرسش هاست که وضعیت حقوقی معامله رمزارز چیست؟ در اختلاف حقوقی برخاسته از معامله رمزارز، آیا متعهدله می تواند الزام متعهد به تسلیم رمزارز را از دادگاه درخواست کند؟ آیا حقی که مورد حمایت مقنن نیست در دادگاه قابل مطالبه است؟ نگارندگان بر آن اند که معاملات رمزارز به دو صورت انجام شدنی است: در چهره «مورد معامله» و در قامت «وسیله پرداخت دین». نفس معامله رمزارز باطل است، اما درصورتی که رمزارز نه در چهره مورد معامله، بلکه به منزله وسیله پرداخت، مورد تراضی قرار گرفته باشد عقد صحیح، لیکن وفای به عهد به دلیل ممتنع بودن شرط تأدیه به جنس با رجوع به قیمت امکان پذیر است.The Validity of Cryptocurrency Transactions and the Analysis of Associated Disputes
Cryptocurrency is one of the modern tools that aims to replace money and is sometimes traded among citizens as a commodity or a means of debt payment. Even though the legislator has banned cryptocurrency exchange in domestic transactions, its buying and selling is common among some people. Therefore, it's necessary first to find the situation of such transactions and then the type of reaction of the court to the lawsuit on cryptocurrency among the provisions and in the shadow of general legal principles. This article seeks to answer these questions: 1) What is the legal status of cryptocurrency trading? 2) In a legal dispute of cryptocurrency transaction, can the promise request the court to hand over the cryptocurrency by the promisor? 3) Can a right not protected by the law be claimed in court? The authors believe that cryptocurrency transactions can be done in two ways: first, in the form of a “trade item" and second, as a “means of payment. "The cryptocurrency transaction is void under the law, but if it is agreed upon as a means of payment, the contract is valid. But we cannot use cryptocurrency as the price of the transaction, and fiat money should be given instead. Keywords: The Right to Cryptocurrency, Cryptocurrency in Civil Procedure, Irrevocability of Cryptocurrency Transactions, The possibility of Claiming Cryptocurrency, Prohibition of Cryptocurrency Trading 1. Introduction The complex economic relations in the current era increasingly demand the provision of efficient, rational, and comprehensive legal norms. Non-compliance with the law and exploitative behaviors, which reflect a clear image of the present culture, pose a threat to the economic and social health of our nation. Among the causes of such risky behavior, factors such as concerns over the continuous depreciation of the national currency and widespread changes in people’s welfare standards can be highlighted. However, irrespective of the reasons behind this dominant profit-seeking behavior, ignoring government regulations—if not properly identified and controlled—can have devastating consequences across political, economic, social, and cultural domains. One area of evasion from the law is the buying and selling of cryptocurrencies or the commitment to settle debts through the delivery of cryptocurrencies, without regard to their official prohibition. With the emergence of cryptocurrencies, transactions based on these tools have gained significant popularity among citizens in various countries. Individuals use their electronic wallets to buy and sell a growing range of cryptocurrencies, and in some cases, they also utilize them as a means of payment. The approach of different governments toward these types of transactions is not uniform. In Iran, the legislator has prohibited the buying and selling of cryptocurrencies, while allowing their mining. However, miners are obligated to sell the mined cryptocurrency to a government-approved exchange. Despite this, government regulations have been somewhat disregarded, and it can be said that, despite the explicit legal prohibition, cryptocurrency transactions have become commonplace among the public. 2. Methodology This research seeks to analyze the claim for cryptocurrency recovery through a descriptive-analytical method, based on the norms and principles governing the legal system of Iran, particularly the principles and rules of civil procedure. It aims to examine the theoretical foundations and practices of certain countries, providing the necessary information for creating a legislative and judicial framework and offering solutions in the event of legal disputes among traders. 3. Results and Discussion Legal disputes are an inevitable consequence of social life. Cryptocurrency transactions, in whatever form they may occur, have the potential to lead to legal conflicts under various legal categories. The conclusions drawn from this research are based on an analysis of the following questions: How can a legal dispute related to cryptocurrency be initiated as a lawsuit in Iranian courts? To answer this question, a distinction must be made between two scenarios: If cryptocurrency is agreed upon as the “subject of the transaction”: As per Article 348 of the Civil Code, a sale of goods that is prohibited by law is considered void. Therefore, any agreement involving cryptocurrency as the subject matter of the contract is legally invalid, and a claim for the return of such unlawful assets (cryptocurrency as the main subject of the obligation) is not enforceable in court. This would result in the dismissal of the claim. If a transaction involves a specified subject matter and, after determining the price, the parties choose cryptocurrency as a payment method: In this case, firstly, based on the principle of validity of transactions the transaction cannot be deemed invalid. Secondly, given the impossibility of fulfilling the original payment condition in cryptocurrency, payment will be paid by local currency instead. Thus, in such a scenario, a claim for the “price of cryptocurrency” does not face any legal obstacles, and the court can grant the request for the payment of the price (in the form of the local currency). Another question that needs to be addressed is the court’s response to a lawsuit for the claim of cryptocurrency in the context of direct and indirect obligations. It has been stated that a action for the claim of cryptocurrency is not acceptable due to its conflict with public order. In the case of direct cryptocurrency transactions, a legal right is not created in reality, so a civil action based on it cannot be established. This is because the foundation of a civil claim is a legitimate and enforceable right that must be demonstrably realizable. Therefore, when the creation of a right conflicts with public order, mandatory rules take precedence, and with the dominance of public interest over private will, the courts do not recognize any rights for the parties involved and will dismiss the claim. However; The issuance of a ruling for the payment of cryptocurrency, when specified as a secondary (indirect) obligation in the contract, is permissible, provided that all other conditions are met. This is because the direct obligations of the parties represent legitimate rights protected by the legislator, and their exchange is lawful. However, the payment of cryptocurrency as a substitute for the subject matter of the contract is neither feasible nor possible for the obligated party. In such circumstances, the claim for the payment of cryptocurrency and its acceptance by the court is viable. The third question is: What is the status of the injunction and precautionary measures regarding cryptocurrencies? The injunction and precautionary measures of cryptocurrency require access to a server (or computer system) to facilitate temporary execution, securing, confiscation, auctioning, and sale. However, in the current situation, the mechanisms for the injunction and precautionary measures of cryptocurrency are not available in Iran, and accepting requests for or issuing precautionary orders to seize or secure cryptocurrency is not valid due to the inability to implement them. The validity of cryptocurrency transactions, both when they are the subject of the primary obligation and when they serve as a means of payment for debt, within the context of the relationship between the parties and third parties, is a matter of legal consideration. A cryptocurrency sale contract, provided it adheres to all relevant legal elements, is at least enforceable between the contracting parties. This is because, on the one hand, the grounds for the invalidation of legal actions under the country’s legal and jurisprudential framework are clearly defined, and the authority to expand or limit the scope of such actions rests with the legislator, not the executive. Thus, a government decree prohibiting cryptocurrency transactions cannot render invalid a contract that involves the transfer of cryptocurrency as a condition. On the other hand, the general legal principles governing the country’s transactional system tend to preserve the integrity of legal institutions. Therefore, any interpretations that would undermine an agreement should be made in a manner that does not invalidate the contract itself. Consequently, declaring a direct cryptocurrency transaction as void, or reverting to an alternative when cryptocurrency is agreed upon as a secondary obligation, does not justify disregarding the direct contractual obligations between the parties. The commitment arising from these contractual obligations remains enforceable between the parties, even if such obligations are not enforceable vis-à-vis third parties. 4. Conclusions and Future Research The obligations arising from economic policy are intrinsically tied to the national interests of each country. The will of the contracting parties is recognized to the extent that it does not conflict with mandatory regulations aligned with the country’s macroeconomic policies. Cryptocurrency is an emerging phenomenon, the future of which has caused doubt and differing opinions even among renowned economists worldwide. Currently, and at least until more appropriate regulations are enacted in this area, it is necessary to rely on the expert opinions of economists and to respect and observe the government regulations based on these views. The legal system, by virtue of its inherent duty, does not tolerate disrespect for regulations and, while respecting individual freedoms, prioritizes public interests. However, a distinction must be made between a contract whose primary subject is the buying and selling of cryptocurrency and a contract where the delivery of cryptocurrency is a secondary aspect. In direct cryptocurrency transactions, the prohibition of such transactions and the principle of judicial protection for public order necessitate that the terms of the agreement between the parties be interpreted in light of the priority of public interests over the private interests of the contracting parties. Therefore, a contract whose primary subject is the “transfer of cryptocurrency” and which conflicts with public order should be deemed invalid. However, in a transaction where the main obligation is the delivery and payment of a lawful item, such as where the buyer is obligated to pay a specified amount of national currency, but the parties agree to fulfill the obligation using cryptocurrency, the contract should be presumed valid, even if the secondary obligation (the cryptocurrency transfer) cannot be fulfilled. This is because declaring the legal relationship invalid contradicts the general principle, and in case of doubt, the contract should be considered valid as long as the exchange of the consideration is not explicitly prohibited by the legislator. In such transactions, since the fulfillment of the obligation as agreed upon is not possible and, on the other hand, the main obligation to pay the lawful consideration is not obstructed, according to the provisions and general principles governing civil law, the contract is valid.
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