Money laundering and acquisition of cryptoassets: an analysis under the functional-reducing perspective

Abstract

This dissertation investigates the crime of money laundering in the context of cryptoasset acquisition, from a functional-reductive perspective of criminal law. The central objective is to establish precise and coherent criteria for the incidence of criminal norms, aiming to limit the irrationality of punitive power and promote a counter-selective application, without compromising the accountability for complex criminal typologies. The study is pursued through a bibliographic review, analyzing national and international doctrine, legislation, and jurisprudence, complemented by interdisciplinary sources from economics, technology, and sociology. The first chapter establishes the theoretical premises of Zaffaroni's negative/agnostic theory of punishment and the reductive penal system. Criminal law, from this perspective, functions to limit punitive power. The second chapter delves into the crime of money laundering, analyzing its evolution, phases, the affected legal interest (socioeconomic order, with a focus on free competition and initiative), and its typical elements, based on the established theoretical framework. The third chapter comprehends the phenomenon of cryptoassets, detailing the functioning of Bitcoin and blockchain, the universe of decentralized finance (DeFi), forms of acquisition, and the Brazilian regulatory framework. The fourth chapter applies the dogmatic framework to the analysis of money laundering's typicality in different forms of cryptoasset acquisition and discusses the aggravating factor for the use of virtual assets. The research achieves its general objective by demonstrating a path for criminal dogmatics to establish precise criteria and limits for the incidence of money laundering, legitimizing judicial decisions by curbing punitive arbitrariness. Criteria are established to identify typical and atypical cases of money laundering involving cryptoasset acquisition, and requirements are set for the application of the special aggravating factor, conditioning it on the concrete demonstration that the use of cryptoassets intensified the harm to the legal interest. The interdisciplinary approach and consideration of the Brazilian reality are crucial to reject the trivialization of the institute and fulfill the counter-selective function of the penal system, preventing the automatic imputation of this serious crime without a proper technological understanding and knowledge of money laundering's limits