Table of contents
The emergence of crypto assets and other digital assets in economic transactions has led to an unprecedented transformation in the asset configuration of individuals and legal entities. The traditional concept of assets, understood as a set of tangible goods, bank accounts, real estate, or regulated financial products, has been progressively replaced, at least in part, by intangible, decentralized, and digitally stored assets, such as cryptocurrencies (Bitcoin, Ethereum), non-fungible tokens (NFTs), and other rights or balances with economic value stored on digital platforms or blockchain systems.
This new reality poses significant challenges for civil procedural law, particularly with regard to the process of enforcing crypto assets, which constitutes the jurisdictional means of enforcing a judicially recognized credit right. Designed on the basis of an analog, banking, and centralized economy, the current enforcement process does not specifically contemplate or regulate these new types of assets, which creates regulatory gaps, legal uncertainty, and, in many cases, frustration of the credit right due to the practical impossibility of locating, seizing, or realizing the digital assets of the debtor.
In this context, the process of enforcing crypto assets runs the risk of becoming disconnected from contemporary economic reality, which calls into question the principle of effective judicial protection in this area. Creditors facing debtors with digital assets encounter severe difficulties in obtaining real satisfaction of their claims, while debtors with advanced technological knowledge can hide their assets with relative ease, escaping traditional asset control mechanisms.
In this article, we systematically analyze the main legal and procedural problems posed by the civil enforcement of crypto assets in the Spanish legal system, reviewing both the regulatory obstacles and the practical responses that some courts are beginning to apply. We also propose lines of reform that would allow the enforcement process to be adapted to this new asset reality, with the ultimate goal of ensuring the effectiveness of court decisions in an increasingly digitized and technologically complex economic environment.
1. The civil enforcement process under a new property model
The civil enforcement process, regulated by Articles 517 et seq. of the Civil Procedure Act (LEC), is the channel through which courts enforce their decisions. Its effectiveness depends on its ability to affect the debtor's assets, understood as the set of assets that can be seized.
For decades, these assets have mainly consisted of real estate, vehicles, salaries and pensions, bank accounts, shares, or holdings in companies.
However, in recent years, a new type of asset has emerged, digital and decentralized, which does not fit well into the classic scheme of civil enforcement. We are referring mainly to:
- Cryptocurrencies such as Bitcoin, Ethereum, or stablecoins.
- Non-fungible tokens (NFTs).
- Balances in electronic wallets or online platforms.
- Digital rights with economic value (trading accounts, video game skins, web domains, etc.).
These new assets, many of which are not registered or managed by centralized entities, are revolutionizing the concept of property. And this raises a fundamental problem: How can you seize something that cannot be easily located or controlled?
2. Main legal obstacles to the execution of crypto assets
The difficulty in enforcing these assets is not due to a single cause, but rather to a combination of technical, legal, and procedural factors, including:
a) Lack of specific regulation
The LEC does not expressly mention or regulate digital assets or crypto assets, so their seizure and realization must necessarily fit into traditional categories.
b) Anonymity and decentralization
Cryptocurrencies are not associated with a legal identity by default. They are not held in banks or subject to third-party supervision, which prevents the application of typical seizures such as bank orders (Art. 621 LEC).
c) Volatility and difficulty of valuation
The valuation of digital assets is extremely volatile. A cryptocurrency can change in value by 20% in a single day, which complicates the setting of a “fair price” and can lead to unfair situations at auction.
d) International relocation
Many assets are held on platforms located outside the EU, which do not cooperate with the Spanish authorities, thereby reducing the effectiveness of judicial assistance.
e) Complex technical custody
Crypto assets can be held in a “cold wallet” (physical device) or protected by a private key known only to the debtor. Without that key, the asset is technically inaccessible.
3. What solutions are being implemented?
Despite these difficulties, some courts are developing practical responses, albeit still in isolation and without uniform regulation:
- Requirements for the debtor to identify and provide access to their crypto assets (Art. 589 LEC).
- Seizure of balances on exchange platforms (such as Binance or Coinbase), when these have a branch or activity in Spain.
- Intervention by IT experts to identify digital assets on the debtor's personal devices.
- Use of precautionary measures on possible crypto assets.
However, these practices depend heavily on the judge and the procedural drive of the creditor, and tend to have limited effectiveness if the debtor acts with opacity or if the assets are located abroad.
4. What reforms does the civil process need to adapt to the new digital economic reality?
The digital reality requires a thorough overhaul of the execution process, which could be articulated in several ways:
a) Legislative reform of the LEC
- Expressly include crypto assets and digital assets in the catalog of Article 605 LEC.
- Establish a specific seizure procedure, with legal obligations for exchanges and digital custodians.
- Create judicial collaboration protocols for the execution of digital assets.
b) Technical training for Judges and Court Clerks
It is essential that judicial personnel understand the basic functioning of digital assets in order to take effective measures.
c) International cooperation
Given that many platforms operate from outside Spain, international judicial cooperation and agreements with third countries should be strengthened, in line with the European framework for the recovery of digital assets.
5. Conclusion
Civil enforcement proceedings, as an essential tool for ensuring the effectiveness of court rulings, are currently facing a structural challenge: urgently adapting to a new asset paradigm that is deeply influenced by the digital transformation of the economy. Nowadays, it is not unusual for a debtor to have substantial assets in crypto assets or digital assets, valued at hundreds of thousands or even millions of euros, while keeping their current accounts empty, lacking real estate, or receiving income that is officially unattachable. This situation highlights an alarming asymmetry between economic reality and the responsiveness of the procedural system, sometimes rendering the judicially recognized right to credit merely symbolic, and even illusory.
The absence of specific regulations on the enforcement of these assets not only compromises the practical effectiveness of the process, but also generates legal uncertainty that directly impacts the confidence of litigants in the judicial system. This opens up a worrying space for asset impunity, particularly in cases where the defendant acts with fraudulent intent.
This reality calls for a coordinated institutional response. Only through joint action will it be possible to prevent civil enforcement proceedings from becoming obsolete in the face of the digital revolution. Because if the law does not adapt to the way citizens manage, hide, or transfer their assets, judicial recognition of creditors' rights will lose all real effectiveness, and with it, the very raison d'être of the process.
Given the complexity of civil enforcement of crypto assets and digital assets, it is advisable to consult experts who have in-depth knowledge of the structural and operational aspects of the sector, combining procedural, tax, and technological fields. Contact them here.
Lawyer in the area of litigation and arbitration
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