Die zivilrechtliche Haftung für Kryptowerte-Whitepaper
Buch in deiner Nähe kaufen
Beschreibung
Carlo Pöschke analyzes the private law liability regime for crypto-asset whitepapers under MiCAR in all its aspects, establishes the necessary connections to national law as well as to private international and international civil procedure law, and, building on this analysis, develops his own reform proposals for a future MiCAR update.
In Articles 15, 26, and 52 of the MiCAR, the European legislator has established genuine Union law-based causes of action. The fundamental approach of introducing a liability regime for whitepapers directly anchored in EU law is persuasive; however, its concrete implementation reveals significant weaknesses in many respects. The wording of the provisions exposes an unbalanced system: on the one hand, the scope of liability is excessively broad, as the circle of potentially liable parties - including members of the supervisory body - is extensive and an explicit requirement of fault is missing; on the other hand, in practice, the enforcement of whitepaper liability claims will frequently fail due to the transaction causality, the proof of which is expressly placed on the claimant. Another shortcoming lies in the fact that, despite MiCAR's character as a regulation, key issues remain unresolved, making it necessary to resort to national law. This applies in particular to the scope of liability, contributory negligence, and limitation periods. However, such recourse to domestic law contradicts MiCAR's objective of harmonization and raises complex questions of private international law that must be clarified in advance. Nevertheless, certain instruments consistent with EU law are available to legal practitioners that can mitigate some of the problems described de lege lata. There are strong arguments that whitepaper liability claims require fault as an unwritten element and that, where a German court has jurisdiction, claimants may benefit from an easing of the burden of proof (though not a reversal) through the doctrine of hypothetical proper conduct (aufklärungsrichtiges Verhalten).
The publication of this work was supported by the Stiftung Kapitalmarktforschung für den Finanzstandort Deutschland.
Autor*in
Carlo Pöschke
Born 1998; studied law at the Universities of Bonn and Oxford; First State Examination in Law in 2023; Research Associate at the Institute for Law and Finance at Goethe University Frankfurt; PhD 2025; legal traineeship (Referendariat) at the Higher Regional Court of Frankfurt am Main.
Themen in »Die zivilrechtliche Haftung für Kryptowerte-Whitepaper«
Aufklärungsrichtiges Verhalten Beweislast Digital Assets Europarecht Finanzmarktregulierung Haftung Harmonisierung Internationales Privatrecht Kapitalmarktrecht Kausalität Kryptowerte MiCAR Prospekthaftung Rechtsdurchsetzung Tokenisierung