Dogmatics, claim architecture and enforcement — from blocking to enrichment, tort and subrogation to insolvency, international jurisdiction and comparative law.
7 chapters
Legal comparison DE/UK/US
Checklist
Whitepaper
Legal protection for stolen crypto assets already exists — only its dogmatic foundation is still maturing.
Blocking, enrichment, offense, surrogate, criminal security, forum — not a single property claim.
After swap, bridge and CEX off-ramp, only replacement value remains — the specific recovery diminishes.
Executive Summary
Not "who owns the coin" — but which bundle of claims survives the taking. A complete legal "ownership" of native crypto assets is not explicitly defined in German law. However, the injured party is not without protection—the crucial factor is to think early and in parallel: blocking, identity, unjust enrichment, tort, substitute, criminal prosecution, and forums.
The central dogmatic question in German law is not simply who "owns" the coin, but whether native cryptocurrencies are even subject to an absolute right akin to ownership. The wording of the German Civil Code (BGB) is cumbersome in this regard: "things" refers only to physical objects, and the ownership claims of §§ 985 ff. BGB are tailored to things. At the same time, European crypto law explicitly addresses the ownership rights of customers: MiCA requires service providers to safeguard customer rights, maintain inventory registers, and legally segregate custody holdings.
For native coins, the sober core message is this: the continued existence of "ownership" in the strict sense of property law is not clear. However, the injured party's position survives the theft as a bundle of claims based on unjust enrichment, tort, contract, and potentially similar property rights; some argue for an "other right" within the meaning of Section 823 Paragraph 1 of the German Civil Code (BGB), others for an absolute right of property, and still others for an analogy to property law.
In practice, the earlier access is gained, the more likely restitution in kind is possible. As long as the asset is in the same wallet, on the same exchange, or in an identifiable custody arrangement, blocking, release, or retransfer are achievable. After on-chain swaps, CEX deposits, omnibus pooling, or cross-chain bridges, the focus shifts to claims for proceeds and compensation for value. German law does not have an equity-based tracing doctrine like the one in England—but Section 818 Paragraph 1 of the German Civil Code (BGB) covers substitutes, and Sections 47 and 48 of the German Insolvency Code (InsO) demonstrate the same logic of substitution.
„"Those who want to prosecute stolen cryptocurrencies should not rely on a single property claim — but should think in parallel about blocking, enrichment, crime, surrogate, criminal protection and forum."“
Key finding for practical application
Three categories of cases must be distinguished: native self-custodied crypto assets on a public blockchain, crypto assets held in custody by a central service provider, and tokenized rights with a contractual basis. This classification determines the claim structure, insolvency situation, and whether the injured party is pursuing a specific asset or merely a claim against an intermediary.
Control instead of physicality. Whoever holds the private key controls the value — but Section 90 of the German Civil Code (BGB) links "ownership" to physical objects. This is precisely where the dogmatic breaking point lies.
The breaking point lies in Section 90 of the German Civil Code (BGB): "Things" refers only to physical objects. The direct application of property law to native crypto assets is therefore not self-evident. MiCA reinforces this finding: Article 70 requires provisions to safeguard customers' ownership rights, and Article 75 mandates a customer register, separation of customer and proprietary holdings, and legal segregation. This significantly supports interpretations similar to ownership.
A warning signal comes from tax law: In 2025, the Nuremberg Tax Court denied the attribution of "economic ownership" to a blockchain entry under Section 39 of the German Fiscal Code (AO) – not a landmark civil law decision, but an indication that German courts are cautious about making hasty analogies of ownership. From a functional perspective, the injured party's exclusive position of ownership can persist – only as a contested, and sometimes differently qualified, absolute or quasi-absolute property right.
The vicarious solution via § 985 of the German Civil Code (BGB) is problematic for native crypto assets according to its wording, because it presupposes ownership of a thing; the same applies to §§ 861, 1004 BGB. The direct anchors are rather §§ 812, 818, 816, 823 BGB. German law does not recognize a US-style conversion lawsuit — its functional equivalents lie in the law of unjust enrichment and tort law.
Under the law of unjust enrichment § 812 BGB Often the first safe haven; Section 818 Paragraph 1 of the German Civil Code (BGB) extends the obligation to benefits and substitutes. If the stolen coin is sold or swapped, the proceeds or replacement asset remain subject to unjust enrichment law—the most important German link to prosecution under the Proceeds Act. Under tort law, § 823 BGB The second pillar: Anyone who spies on or unlawfully transfers keys infringes at least on the property of others; even if absolute legal nature is denied, claims for damages against perpetrators and knowing intermediaries remain viable.
Urgent legal protection — time is more important than legal doctrine
Sections 935, 940 of the German Code of Civil Procedure (ZPO) (preliminary injunction) · Section 937 para. 2 ZPO (decision without oral hearing) · Section 294 ZPO (establishment of prima facie evidence, any means of proof). Central to wallet freezing, orders to surrender to custodians, and securing evidence — on-chain values shift in minutes.
The criminal law route runs parallel: Section 94 of the Code of Criminal Procedure (seizure), Section 111b of the Code of Criminal Procedure (seizure to secure confiscation), Section 73 of the Criminal Code (confiscation of proceeds). Central to the victim's perspective is... Section 73e of the German Criminal CodeConfiscation is precluded to the extent that the injured party's claim for restitution or compensation has expired—mere statute of limitations is irrelevant in this respect. Criminal proceedings do not replace the civil action for surrender, but are its most important enforcement and informational vehicle.
The legal stress point in every case is the mutation Regarding the asset: A DEX swap exchanges the asset, a central exchange replaces wallet access with a book entry, a bridge locks the original asset and mints a wrapped asset. The protected object changes—and with it, the strongest legal bases for claims.
From asset to surrogate. With every swap, every bridge, and every CEX deposit, the pursuit shifts from specific recovery to value recovery — Proceeds and compensation for value.
As a general rule: If the assets remain identical, asset-specific claims are strongest; in the case of an exchange or bridge migration, the focus shifts to surrogates, proceeds, and compensation for value. Section 818 Paragraph 1 of the German Civil Code (BGB) supports the concept of surrogacy, while Section 48 of the German Insolvency Code (InsO) assigns the identifiable consideration to the entitled party—not a fully developed tracing doctrine, but the most robust German basis for avoiding legal recourse after a swap.
Acquisition in good faith under § 932 of the German Civil Code (BGB) requires the sale of an object; § 935 BGB precludes this in the case of lost or stolen property. For native crypto assets, there is currently no clearly codified "bona fide purchaser" protection—by analogy to property law, § 935 BGB would even constitute a strong argument for victimization. England treats crypto as property with tracing, but considers bona fide purchaser defenses a serious risk; the US works with control-based rules (UCC Article 12) that can give downstream purchasers more protection.
For claims based on unjust enrichment and tort, the standard limitation period of three years applies (§ 195 BGB), beginning at the end of the year in which knowledge was gained (§ 199 para. 1 BGB). In cases involving cryptocurrencies, the Identification of the debtor often the bottleneck — the question of knowledge thus becomes as important as the material basis for the claim.
Segregation decides. Section 47 of the Insolvency Code grants segregation — strongly in the case of cleanly segregated custody, weakly in the case of a vague claim to „any quantity“ of coins in the estate.
Under insolvency law, the qualification of the legal position is decisive. Section 47 of the German Insolvency Code (InsO) grants segregation in the case of a right that excludes the insolvency estate; Section 81 InsO renders dispositions made after the commencement of insolvency proceedings ineffective. Someone with only an imprecise claim is significantly weaker than a customer of a system with a clear register of positions and legal segregation. Here, MiCA has a strong impact (Articles 70, 75). The US counterpart: In the CelsiusIn the bankruptcy proceedings, the court based its decision regarding earn accounts on the terms of use — Celsius held „all rights and title, including ownership rights“. The contract text and custody structure are often more important for bankruptcy distribution than the abstract question of ownership.
Nationally, Sections 17, 32 and, where applicable, 23 of the Code of Civil Procedure provide the starting point; in EU cases, the following regularly supersedes it: Brussels Ia Regulation National law. Conflict of laws applies to non-contractual claims. Rome II The decisive factor (lex loci damni) — however, the place of loss is notoriously difficult to determine in cases of cryptocurrency theft. The Travel Rule Regulation 2023/1113 improves the situation for transfers via regulated service providers; pure peer-to-peer chains remain more difficult to regulate — CEX/CASP connections are invaluable in legal practice.
Cross-border by default. Exchange seats, off-ramps and bridges distribute jurisdiction, connection and enforcement across multiple states — forum strategy is part of claim enforcement.
England is the most useful order of comparison: Since AA v Persons Unknown Crypto is considered property; Courts are combining freezing orders, disclosure relief, actions against persons unknown, and tracing-based proprietary claims, strengthened by the Property (Digital Assets etc.) Act 2025. However Zi Wang v Darby This shows that not every crypto transaction is a trust — the contract architecture remains crucial. USA They do not offer a uniform standard, but rather a patchwork of State Law, Bankruptcy and UCC; successful conversion/constructive trust lawsuits against unknown perpetrators exist alongside tough insolvency and UCC-related defense potentials.
Comparative law — aids and presentation structure
| Order | Character & Primary Aids | Urgent legal protection & information | Downstream acquirer protection |
|---|---|---|---|
| Germany | Native crypto assets are dogmatically controversial; primarily §§ 812, 818, 823 of the German Civil Code (BGB), contract — with a favorable legal interpretation, supplementary arguments regarding ownership/injunction apply. | Preliminary injunction (§§ 935/940 of the German Code of Civil Procedure); criminal procedural safeguarding; information about Exchange & investigation file | No clearly codified good-faith acquisition for native assets; by analogy, § 935 of the German Civil Code (BGB) would be a strong argument for victimhood. |
| England & Wales | Crypto as property recognized; proprietary claims, constructive trust and tracing firmly established | Highly developed practice against Persons Unknown, freezing & disclosure orders | Bona fide purchasing remains relevant, but is mitigated by early freezing. |
| USA | Inconsistent; State law, UCC Art. 12, bankruptcy law, and contract law overlap; conversion, unjust enrichment, constructive trust | TROs/Freezes possible; Delivery and Discovery innovation; Practice diverges | In adopting states, control-based rules offer stronger protection for acquirers; terms of use shape insolvency proceedings. |
For Claimant The most important recommendation is: early parallelization. Don't wait for the public prosecutor's office or the main proceedings—within hours, secure wallet data, cluster transaction paths, notify exchanges, file freeze requests, provide criminal complaints with specific target addresses, and prepare urgent applications. Those who only get involved after swaps, bridges, and CEX off-ramps often don't lose their legal position, but they do miss the best recovery opportunity.
For Stock exchanges and custodians The red line is MiCA-compliant segregation: a robust customer register, documented key control, verifiable separation of proprietary and customer assets, incident response, and clear contractual allocation of custody rights. This determines whether a customer can be segregated in insolvency proceedings and whether a freeze order is operationally feasible.
Checklist in case of suspected cryptocurrency theft
| Asset type | Determine Native Coin, Custody Position, Stablecoin, Tokenized Right, Wrapped Asset or NFT. |
| Custodial model | Clarify whether to use self-custody, a central exchange, a third-party custodian, a bridge custodian, a multi-signature or a smart contract pool. |
| Hash chain | Document the origin wallet, transaction hashes, destination addresses, swaps, bridges, and CEX deposits. |
| Get informed immediately | Exchanges, custodians, compliance agencies and law enforcement agencies with precise wallet/asset details. |
| Claim bundle | Examine the contract, §§ 812, 818, 823 BGB, possibly § 816 BGB and property-related defense approaches. |
| Expedited proceedings | §§ 935, 940, 937 II, 294 ZPO; in case of asset outflow, consider attachment or criminal procedural securing. |
| Forum & Networking | Analyze the seat/jurisdiction, Brussels Ia, Rome II, off-ramp and enforcement state separately. |
| insolvency risk | Read the Terms of Use, Wallet Structure, MiCA Segregation, Exclusion Requirements, and Title Transfer. |
The most reliable statement is not "ownership yes or no," but rather: Legal protection for stolen crypto assets already exists today—however, its dogmatic foundation and asset-specific scope are not yet fully consolidated in German law. It remains open whether native crypto assets will be explicitly recognized as absolute property rights or partially analogous to property law, and how German substitution logic relates to a fully formulated tracing doctrine.
For legal advice, a change in methodology is crucial: away from a single property claim and towards a coordinated package of civil preliminary injunctions, criminal proceedings to secure assets, prosecution of surrogate debtors, and an international forum strategy. Those who pursue this early, with documentation, and in parallel keep the recovery opportunity open—especially where values change hands in minutes via swaps, bridges, and off-ramps.
David Lüdtke
Managing Director · OSINT Analyst & Crypto Forensic Expert · Financial Forensics GmbH
Court-admissible crypto transaction analysis, OSINT-based asset investigation, and expert reports for defense attorneys, insolvency administrators, and companies. Certified Crystal Expert (CECF, CEEI, CEUI). Financial Forensics Supports law firms, companies, investigative bodies and insolvency administrators — focus areas: Blockchain forensics, wallet analysis, court-admissible documentation, OSINT.
Contact: postfach@finanz-forensik.de +49 6057 772 994 86
We secure evidence, create legally sound crypto forensics reports and support law firms in asset recovery — before deadlines expire.
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