We are witnessing the times when cryptocurrencies are increasingly occupying the agenda and trying to gain a place in the international and national financial system. Bitcoin’s, as it is known among the people of the crypto money, exactly what it represents, whether it is a real currency, to whom it belongs, how reliable is whether it is legal and whether it took place between the most discussed and concerns.
As Solmaz Legal and Consulting team, we felt the need to share this article with you, which provides an overview of how crypto money is evaluated from a legal point of view around the world and on the basis of our country, hoping that it will be an answer to the question marks in our minds. From the content of our article, you can find general explanations about the basic logic and functioning of the cryptocurrency system, assessments of whether the use of cryptocurrency is legal, and data on how cryptocurrencies are positioned from the perspective of Turkish Law.
1. What is Cryptocurrency?
There is no agreed-upon definition of crypto money. Crypto coins are trying to be described through their general characteristics. First of all, it is important to make the following distinction. Crypto money, bitcoin and blockchain, that is, decoy technology, are seen in the same sense among the public and are used instead of each other. However, in fact, these are closely related concepts, but they do not mean exactly the same thing.
Blockchain (blockchain) technology is the name of a kind of new information technology used by crypto currencies. Crypto coins are produced, used, transferred and stored on this site. Bitcoin (BTC) is just one type of crypto currency. However, because it is the first crypto currency to be announced, the word bitcoin is also used instead of crypto money. There are many different crypto currencies besides bitcoin. They are called alternative coins (altcoin). LiteCoin, Ripple, Libra are examples of these.
It is envisaged that cryptocurrencies will be an alternative to national currencies. Unlike the coins we know, crypto coins do not belong to a particular country and are not offered by the central bank of a country. The owner and users of the cryptocurrency are anonymous, that is, their identity is uncertain. People can register in the system without having to reveal their identity and make money transactions through electronic keys and wallets.
- Not issued by a central organization,
- Produced by private entrepreneurs,
- Who cannot be subjected to a centralized audit,
- Information technologies are used in the production and circulation of money,
- Functioning and security are ensured by some kind of encryption (cryptography) method,
- Its value is not attributed to any country’s currency, precious metal, etc. non-indexed to tangible value,
- The value of the product varies according to the supply and demand in the market,
- Which can be exchanged with real currency,
- are a digital and sui generis (unique) type of money that can be used for payment and investment purposes.
TCMB defined crypto money as “distributed notebook technology or using technology similar to digital networks that are created and distributed over virtually, however, fiat money, bank money, electronic money, payment instruments, securities or other capital market instruments that do not qualify as intangible assets.” .
2. What Is Blockchain (Blockchain) Technology?
In blockchain technology, there are blocks with data structures added consecutively to each other. Blocks are blocks consisting of movements involving the transfer of money. Money transfers(transactions) are added consecutively to the transaction that occurred before it in terms of time. As blocks are added decently and sequentially in this way, the security of the blockchain is guaranteed, since the previous block information will also be found on the next blog.
The blockchain is not kept in a certain center, it is scattered, a copy is kept on each computer in the bitcoin network. There are money transactions that have been recorded in the blockchain and are no longer able to be returned and changed. Although users do not have to disclose their identity, transparency is essential in terms of transactions made. Money movements can be observed by users. Thanks to this, these data stored on each computer are not lost and cannot be changed.
Blockchain technology is a technology used in many sectors such as education, health, food, entertainment, agriculture, finance. Blockchain technology, which is built on cryptocurrencies in the field of financial technology law, starting to be used differently and widely is thought that it will create Lex Cryptography as a new legal fieldfor example through smart contracts, smart properties and autonomous formations” For example, in the United States, legal regulations have been made regarding blockchain and smart contracts albeit at the state level.
3. General Descriptions of the Logic of the Functioning of the Crypto Currency System And Its Use
For the purchase and use of crypto currency, the user must download open source software on his computer. This process does not incur any fees, and the user stores their bitcoins in a digital wallet.
In addition, websites that offer on-line wallet services also allow users to create a bitcoin address and transfer money without installing software on their computer. Exchanges and clearing houses also allow the exchange of bitcoins with virtual or real money. In summary, the transfer of bitcoins is carried out through wallets, sites that provide services in this regard, or through exchange platforms.
Bitcoin transfers can be made to bitcoin addresses belonging to people. A person can obtain as many as they want from these addresses, which can be compared to the bank account numbers that we use today. Bitcoin addresses can be obtained from wallet applications and wallet service sites that provide services in this regard.
Due to the fact that crypto currency is not centralized, it is called a peer-to-peer (per-to-peer) system, since people can directly transfer money without the need for any other intermediary.
4. Is the Use of Crypto Currency Legal?
There are question marks around the world about whether cryptocurrencies, which are still in a legally gray area, are legal. A legal basis for the use of crypto coins has not yet been established in Turkey. There is no clear ban on the use of Bitcoin, as well as legal regulations governing its use have not been established. April May 1, 2021 and April 16, 2021, TBMM regulation, except for the press releases published from time to time by the BDDK and the SPK and the very recent Presidential Regulation of May 1, 2021, we also do not have a legal parameter. But it is still possible to draw conclusions on this issue from the point of view of legal logic and general legal principles.
First of all, it is a general rule of law that everything that is not expressly prohibited must be free. In the same way, according to the principle of legality in crime and punishment, it is a fundamental rule adopted from the point of view of both constitutional and criminal law that no criminal and security measures can be applied to anyone due to the commission of an act that is not clearly defined as a crime in the law. Since there is no legal regulation prohibiting the use of bitcoin for today, it cannot be said that the use of bitcoin alone is a crime.
With the Regulation on the Non-Use of Crypto Assets in Paymentpublished in the Official Gazette of the TBMM dated April 16, it is forbidden to provide services for the direct or indirect use and use of crypto assets in payments. Payment service providers may not develop business models in such a way that crypto assets will be used directly or indirectly in the provision of payment services and the issuance of electronic money, nor may they provide any services related to such business models. Payment and electronic money institutions may not mediate platforms that offer trading, custody, transfer, or issuance services related to crypto-assets, or transfers of funds from these platforms. However, it should be understood from this regulation that the use of bitcoin as a total is not prohibited. The use of bitcoin as an investment tool is still possible and cannot be considered illegal. Again, in the regulation, since the statement payment and electronic money organizations have been passed, it can be said that there is no ban on bitcoin transactions through banks on the grounds that banks are not in this scope.
Published in the 31471 numbered official gazette dated May 1, 2021, by the presidency laundering proceeds of crime and financing of terrorism with the regulation amending the regulation on measures for the suppression, new responsibilities were given for “entity crypto service providers”. You can look at the explanations in the other title on the subject.
5. Legal Data on Crypto Currencies in Turkish Law
Crypto coins primarily engage states in the field of tax law and criminal law. In some countries, the use of cryptocurrency is prohibited due to possible risks, while others are allowed to use it in a controlled manner, and regulations are made in this area. There are countries that warmly look at the use of cryptocurrency and make regulations on this issue, as well as countries that accept that revenues from virtual currency trading are taxable by making regulations in a tax sense.
The first data on cryptocurrencies in Turkey was published by the BDDK on November 25, 2013, stating that cryptocurrencies are numbered 6943 a press release that The Law on Payment and Securities Settlement Systems, Payment Services and Electronic Money Institutions does not cover crypto money. In this statement, it was announced that cryptocurrencies cannot be qualified as electronic money, and the possible risks were also mentioned as follows; “The fact that the identities of the parties are not known in transactions with Bitcoin and similar virtual coins creates a favorable environment for the use of these virtual coins in illegal activities. Also, to be the extremely volatile market value of the bitcoin, the digital wallet be stolen, lost, or owners to be on it without the knowledge can be used as undue risks, as well as transactions are irreversible, since the risk is open to abuse from operational errors or malicious sellers.”
In its General Letter sent to institutions on November 27, 2017, the SPK noted that there is no legal basis for virtual currencies in Turkey and stated that spot or derivative transactions based on virtual currencies should not be made. “it is reported that regarding currencies, and capital market law in Turkey or cookie arrangement within the scope of the absence of derivative instruments in the absence of considering factors that may form the basis of virtual currencies, at this stage, it is decided not to spot virtual currency derivative transactions which should be made for customers based on the notice.”
Published in the Official Gazette dated April 16, by TBMM, Regulation on the Non-Use of Crypto Assets in Payments provisions are the most concrete legal regulation on cryptocurrencies for today. In the regulation, both crypto assets and using crypto assets as a means of payment are prohibited.
Published in the 31471 numbered official gazette dated May 1, 2021, by the presidency laundering proceeds of crime and financing of terrorism, according to a regulation amending the regulation on measures for the suppression of Law No. 5549 on prevention of laundering proceeds of crime who are regarded as responsible for the implementation of the law, “the crypto service provider entity” has also been added. Some of the consequences of qualifying as obligated in the regulation are as follows;
- Without seeking amount in the continuous business relationship facility,
- When the transaction amount or the total amount of more than one interconnected transaction is twenty thousand TL or more
- When the transaction amount or the total amount of multiple interconnected transactions is two thousand TL or more in electronic transfers,
- In cases requiring notification of suspicious transactions, without seeking amount,
- When there is doubt about the adequacy and accuracy of previously obtained customer identification information, without seeking the amount, it is obliged to identify its customers and those acting on behalf of its customers or on its account by obtaining identity information and confirming the accuracy of this information.
These regulations are incompatible with user anonymity in the cryptocurrency system. However, this regulation is noteworthy in terms of the fact that crypto currency service providers are taken as interlocutors and defined as responsible subjects.
It is known that cryptocurrencies are used in many illegal activities such as money laundering, terrorist financing, manufacturing and trading of drugs and stimulants, tax evasion around the world. The anonymity provided by crypto currencies is a suitable basis for such illegal activities since it is extremely convenient to hide people’s identity information and it is very difficult to track money transfers. It is clear that it is desired to prevent this situation with the new regulation. But the blockchain technology and the way it is used in the cryptocurrency system are excogitative of the applicability of the provisions of the Regulation.
There are different opinions about the future of cryptocurrencies, which are the new digital currency. Some people consider crypto coins to be the technology and norm of the future, while others think that they will be lost in history by being blocked by countries due to the risks they pose. In addition to the discussions conducted in the field of financial technologies, no consensus has been reached on how it should be positioned legally. It is observed that studies on the subject have been accelerated in our country in recent days. We are a follower of innovations and developments in legislation related to cryptocurrencies and the international field.
To learn more, you can visit our newsletters on ”CRYPTO MONEY AND CRIMINAL LAW“, ”EVALUATION OF CRYPTO MONEY AND BLOCKCHAIN TECHNOLOGY IN TERMS OF LIABILITY LAW” on the relevant tab of the blog section of our site.
DURDU, Erdal, Bitcoin as a Cryptocurrency and Criminal Law, 2018, Master’s Thesis, Galatasaray University Institute of Social Sciences Department of Public Law, Istanbul, Turkey: https://avesis.gsu.edu.tr/yonetilen-tez/d1b80c46-03d8-4d4b-9bf2-7e8fead31821/kripto-para-birimi-olarak-bitcoin-ve-ceza-hukuku.
Bozkurt YÜKSEL, Armağan Ebru.”A Legal Overview of Electronic Money, Virtual Money, Bitcoin And Linden Dollars”, IUHFM, C. LXXIII, P. 2, p. 173-220, 2015.