Our partner Juan I. Apoita Carvajal has published an article in LA LEY Penal, No. 174, May–June 2025, entitled “Criminal Classification of the Counterfeiting of Crypto-Assets and Cryptocurrencies: The Current State of the Law”.
The article addresses an issue that remains relatively unexplored from a criminal law perspective: how the Spanish Criminal Code currently deals with the counterfeiting of crypto-assets and cryptocurrencies, and to what extent traditional categories of counterfeiting offences can respond to a technological and financial reality that has evolved rapidly.
Taking the new regulatory framework introduced by the MiCA Regulation as its starting point, the article examines the different categories of crypto-assets—including e-money tokens, asset-referenced tokens, cryptocurrencies, digital currencies issued by central banks and NFTs—and analyses the criminal law implications arising from their counterfeiting.
One of the central issues considered is whether such conduct may fall within the offences of currency counterfeiting or counterfeiting of non-cash means of payment. The current legal framework raises particular difficulties in relation to assets that are not legal tender or whose use as a means of payment depends on their specific characteristics. This requires consideration of the limits imposed by the principle of legality and the legal uncertainty that may arise from an extensive interpretation of existing criminal offences.
The article also examines the counterfeiting of non-fungible tokens (NFTs) separately. Their potential criminal relevance depends on the underlying asset they represent: an NFT linked to a work of art, an image or other digital content does not receive the same treatment as one representing a ticket, certificate or document with legal significance. In the latter cases, the existing framework governing document forgery may already provide an appropriate criminal law response.
On the basis of this analysis, the article puts forward several de lege ferenda proposals aimed at updating the Spanish Criminal Code. These include revising the criminal law definition of currency to expressly cover digital currencies issued by central banks and adapting the definition of non-cash payment instruments to provide clearer treatment for certain categories of crypto-assets.
The article therefore highlights the need for a criminal law framework capable of responding to the evolution of digital assets while continuing to respect the requirements of legal certainty, precise criminalisation and the principle of legality that necessarily govern the application of criminal law.
25.06.30 Articulo JIA Revista La Ley Penal tipicidad asociada a la falsificacion de criptoactivos.pdf
Dialnet: https://dialnet.unirioja.es/ejemplar/702225