For a long time, crypto assets traversed the nebulous frontier between technological innovation and regulatory gap, representing a true 'gray zone' in the Brazilian legal system. However, the ruling of Special Appeal No. 2.127.038/SP, under the rapporteurship of the eminent Minister Humberto Martins, before the 3rd Panel of the Superior Court of Justice (STJ), provides a new legal dimension to digital assets by establishing, in a technical and paradigmatic manner, their unequivocal inclusion in the list of assets subject to judicial seizure.
Fundamental issue: digital assets as seizable property
The central issue discussed in the judgment concerns the possibility or not for the court, in the execution of a sentence, to determine, through the issuance of orders, the research and subsequent seizure of digital assets held by the debtor in specialized brokers (exchanges). The origin of the controversy arises from the absence of specific regulation regarding operations with crypto assets, a fact that led to a denial by the São Paulo Court of Justice, in a decision subject to special appeal.
In this context, the decision issued by the STJ is legally intriguing, as it transcends the simple application of positive Law by seeking to reconcile the creditor's interest in satisfying their credit with the debtor's interest in the least burdensome execution possible, all within a deeply challenging technological scenario.
Technical basis of the ruling: between Procedural Law and economic reality
Minister Humberto Martins based his decision essentially on the literal wording of Article 789 of the Code of Civil Procedure (CPC), which establishes the broad property liability of the debtor over their present and future assets. The Normative Instruction No. 1.888/2019 from the Federal Revenue was also invoked, which mandates the declaration of operations carried out with crypto assets, a circumstance that gives such assets undeniable economic relevance, in addition to revealing strong indications of their material property.
This well-structured technical argument is corroborated by the perception that, even though devoid of specific regulation and not comparable to traditional fiat currencies, crypto assets undeniably constitute intangible movable property subject to seizure. Such an understanding is supported by the most established doctrine, which has long argued that the legal nature of crypto assets aligns better with the classification of intangible movable property, as provided in Article 83, item III, of the Brazilian Civil Code.
Divergence of positions and the critical view on the seizure of crypto assets
Although the STJ's decision represents an important advance in the realization of executive procedural rights in light of technological innovation, one must cautiously analyze the opposing arguments raised by the originating Court and partially accepted in the view of Minister Ricardo Villas Bôas Cueva.
Among such arguments, the practical difficulties in implementing the proposed judicial measure stand out. Digital assets present profound structural challenges for the judicial system, such as:
1. Anonymity and privacy: Crypto assets, by the very conception of blockchain technology, possess a pseudo-anonymous nature. The unequivocal identification of holders directly depends on the collaboration of exchanges and, even so, it is not always possible to identify all the assets that an individual owns, especially those held in private wallets.
2. Economic volatility: Another robust criticism focuses on the high volatility of these assets. The lack of economic stability of crypto assets greatly complicates the precise determination of the seized value, which may lead to future discussions about potential excess or insufficiency of the seizure.
3. Judicial custody and technical security: No less important is the operational issue regarding the custody of digital assets by the Judiciary itself, considering the current lack of specific technological infrastructure for secure storage and potential alienation of these assets.
4. Effectiveness of the restraint: It is also argued about the potential practical ineffectiveness of the decision, given the ease with which digital property can be instantly transferred to international jurisdictions, complicating or even making its recovery unfeasible.
These elements indicate that the seizure of crypto assets cannot be understood as a mere adaptation of already established procedures with traditional assets, requiring an innovative view on the part of legal operators.
Role of exchanges and relevance of self-regulation initiatives
The role played by exchanges emerges with renewed complexity and prominence in light of the decision issued by the Superior Court of Justice. These brokers, by holding digital assets that are subject to judicial restraint in custody, assume a crucial role in the effective realization of enforcement measures, acting as genuine collaborators of the Judiciary. Due to the regulatory gap that still persists regarding the specific legal obligations of these institutions in the face of judicial orders, a significant duty of institutional collaboration is outlined, out of operational and preventive necessity.
In this particular context, the phenomenon of self-regulation gains special relevance, understood as an organized set of norms and procedures voluntarily adopted by the exchanges themselves, aiming to prevent abusive practices, ensure the transparency of financial operations, and actively collaborate with public authorities in situations of judicial intervention. Such practices, already outlined in an embryonic manner by entities such as the Brazilian Association of Crypto-economy (ABCripto), include rigorous compliance policies, measures for clear identification of users and transactions – Know Your Customer (KYC) and Know Your Transaction (KYT) – as well as voluntary communication to authorities about suspicious activities.
Thus, in the immediate absence of detailed legislation, exchanges face the legal and ethical challenge of proactively exercising their regulatory autonomy, establishing clear mechanisms for receiving, processing, and complying with judicial orders, without prejudice to the necessary balance between effective judicial protection and the legitimate protection of users' property and personal rights. In this perspective, a proactive and responsible institutional stance on the part of these entities emerges not only as advisable but as essential for maintaining legal security and the stability of the crypto asset market itself.
Constitutional aspects and the inherent limits of judicial measures for property restraint
From a constitutional perspective, the decision emanating from the Superior Court of Justice demands a particularly cautious analysis of the fundamental principles that govern property enforcement, notably with regard to the guarantee of privacy and the inviolability of individuals' financial and property secrecy, expressly enshrined in Article 5, items X and XII, of the Federal Constitution. Although it is unequivocal that the procedural system must ensure maximum effectiveness of executive protection in favor of the creditor, this premise cannot indiscriminately override the fundamental rights of the debtor.
The issuance of judicial orders to exchanges for the location and seizure of digital assets, therefore, must be preceded by a rigorous judicial assessment regarding the concrete existence of minimum evidentiary elements or consistent indications that justify the breach of the debtor's property confidentiality. The Judiciary is required, in this context, to adopt specific and well-founded measures, avoiding generic or indiscriminate initiatives that, under the pretext of satisfying the executing credit, could characterize an excessive and disproportionate incursion into the privacy sphere of the debtor.
In this regard, the execution judge must act with increased prudence and parsimony, requiring that the creditor clearly demonstrate the relevance and reasonableness of the requested measure, precisely indicating the brokers to be notified, in order to preserve the balance between the legitimate property interest of the creditor and the constitutional rights of the debtor.
Future perspectives: improvement of the enforcement system in light of the technological advancement of crypto assets
The judgment issued by the STJ consolidates itself as a significant jurisprudential milestone, but also reveals the urgent need for the implementation and improvement of legislative and technological measures aimed at enabling the property enforcement of digital assets. In this sense, the progress of Bill No. 1.600/2022, which seeks to explicitly include crypto assets in the list of seizable assets in Article 835 of the Code of Civil Procedure, thus reducing regulatory uncertainties and increasing legal security, gains prominence.
Concurrently, the rapid operational implementation of the tool 'CriptoJud,' developed by the National Justice Council, emerges as fundamental, whose primary purpose is to provide the magistrate with an efficient and technically secure mechanism for locating, blocking, and potentially liquidating crypto assets. This initiative will allow the Judiciary to deal with the technical peculiarities that characterize digital assets, gradually overcoming the challenges posed by blockchain technology regarding anonymity, traceability, and asset volatility.
Thus, the conjunction of these legislative and administrative initiatives is essential for the effective realization of the decision issued by the STJ, allowing executive protection to adequately adapt to technological innovations, without renouncing respect for the fundamental rights of the individuals involved.
Final considerations
In summary, although robust and technically grounded, the decision of the 3rd Panel of the STJ poses more challenges than definitive solutions. The ruling represents only the beginning of the jurisprudential construction around the seizability of crypto assets, requiring constant vigilance not only from the legislator, doctrine, and involved institutions but also the adoption of a creative, visionary, and technically prepared stance to deal with the challenges posed by this new economic paradigm.
Ultimately, the true relevance of the decision lies not only in overcoming the immediate regulatory gap but in the unique opportunity it provides for the Brazilian legal community to rethink, in an innovative way, the Law in the face of technological challenges, redefining the limits and possibilities of judicial enforcement in the 21st century.