Has fiduciary really been introduced by the Law on Digital Assets?

Fiduciary entered the Serbian legislative system through the back door, but only as an attempt – first in the Law on Financial Security in 2018, and then in 2020 in the Law on Digital Assets. In ancient Rome, as far as the genealogy of fiduciary goes, fiduciary (a modality we deal with) secured a claim in such a way that the debtor from the basic legal business, transferred his property rights to the creditor, with the obligation to creditor, after the debtor fulfills his performance, it returns the authorization to the debtor; therefore, the debtor keeps the assets with him, and transfers the ownership over that object to the creditor. As it has already been determined in the literature, there are therefore two owners in fiduciary property – legal  and economic.

However, the Law on Digital Assets is not consistent with the classical concept of fiduciary. This law prescribes in Art. 121 that the fiduciary contract obliges the debtor to the creditor to transfer the right of ownership over the digital asset to him for the purpose of securing the claim, and the creditor undertakes to, in accordance with this contract, return the received or equivalent collateral to the debtor upon execution of the secured claim, i.e. simultaneously with that execution. The creditor, unless otherwise agreed, has the right to use and dispose of the digital asset that is the subject of the fiduciary agreement, including the right to alienate it. So, the traditional legal-economic division of property, which is unknown to the European-continental legal system, is obviously broken here, and one goes a step further in placing hope in the civil conscience, so the fiduciary becomes not only a legal but also an economic owner. This law formulates fiduciary in such a way that the debtor fully transfers the right of ownership to the creditor, which means with the right to hold, use and dispose of digital property. The Law on Digital Assets calls this legal business a fiduciary. However, this is not a fiduciary, but a complete transfer of property with unlimited and absolute property rights of the owner. Therefore, here the legal business is called fiduciary, but it is not in its essence. This is a transfer of property with a termination condition. Due to this setting, the question of whose property the transferred right is located is significantly devalued. For example, in the scientific literature the priority is given to the economic content of law, and determined by using the analogy that in the bankruptcy of a debtor, the right of the creditor is taken as a separate right. However, the Law on Digital Assets sets the opposite situation – it is probably a mistake – because it prescribes that “if the fiduciary agreement is concluded for the purpose of securing claims, the debtor will have the status of a separate creditor, in terms of the law governing bankruptcy proceedings.” Therefore, contrary to the above consideration, this law regulates the issue of the position of the debtor in the event that the creditor falls into bankruptcy, bearing in mind that in addition to the fiduciary transfer of property, as a rule sets the transfer of digital assets. It is not clear how a debtor can have the position of a separate creditor, when the debtor is a debtor from the main contractual relationship and he provides a means of security to the creditor, so there is no claim of the debtor against the creditor which is secured, which is the definition of a separate creditor.