A penhora de criptomoedas no processo civil brasileiro: análise jurisprudencial do tribunal de justiça do estado de São Paulo no primeiro semestre de 2021

Abstract

Cryptocurrency is a technology that has gained visibility in the economic sector, having disruptive ways of using, storing and transferring capital. Their users see them as ways of investment that enables almost anonymous commercial transactions, without much state interference, unlike current currencies. Due to this anonymity, cryptocurrencies gained the reputation of being easily used for illicit activities. In the civil procedural scope, more specifically in the process of execution or enforcement of judgment, it was possible to notice that they can be used for patrimonial protection, as they are difficult assets to be pledged. In this scenario, the hypothesis arose that, due to the regulatory deficit, the Brazilian judiciary system still does not have civil procedural instruments that allow the attachment of cryptocurrencies, as it lacks the means to locate, block, custody and duly expropriate the property, creating a limbo in the justice system that can be exploited for illicit purposes. For this reason, the general objective of the research was to identify in what extent the regulatory deficit makes it difficult or even impossible to garnish cryptocurrencies in the Brazilian civil procedure, based on a jurisprudential analysis of the Court of Justice of the State of São Paulo in the first semester of 2021. Therefore, at first, concepts regarding cryptocurrencies will be addressed. Subsequently, the garnishment procedure will be studied. Finally, all decisions published between 01/01/2021 and 06/30/2021 by TJSP will be analyzed. All decisions have the indexers “cryptocurrencies”, “garnishment” and “execution proceeding” at the same time. The analysis will try to identify the main impasses that the court faces to effectively garnish cryptocurrencies. From this analysis, it was possible to see that the main difficulty is finding the property, since the system used by the Judiciary to search assets has proved to be ineffective. Thus, most of the processes did not even surpass the phase of finding the cryptocurrency, and those that were successful at this point did not demonstrate whether if they were in fact able to garnish and liquidate the property, which allowed the initial hypothesis to be confirmed.