LAW & TECHNOLOGY 제18권 제1호 통권 제97호 (p.12-23)

암호화폐의 법적 성격 - 민사적 일반 이론의 관점에서 -

Legal nature of cryptocurrency - from the perspective of general civil law theory -
키워드 :
암호화폐(cryptocurrency),블록체인(blockchain),비트코인(bitcoin),물건(things),강제집행 (compulsory execution),거래소(exchange),개인키(private key),도산(bankruptcy),화폐(money),유체물(corporeal things)


I. 서론
II. 암호화폐의 법적 성격이 문제되는 영역과현황
   1. 조세법 영역
   2. 금융규제법 영역
   3. 형사법 영역
   4. 민사법 영역
III. 암호화폐의 법적 성격에 대한 비교법적검토
   1. 미국
   2. 중국
   3. 일본
   4. 유럽연합
IV. 민사적 일반 이론의 관점에서 암호화폐의법적 성격에 관한 연구
   1. 암호화폐의 법적 성격
   2. 암호화폐의 성격을 물건으로 보는 경우각 영역별 적용
   3. 입법론적 보완 필요성
V. 결론


Cryptocurrency transactions are subject to private law regulations. This article reviews the legal nature of cryptocurrency from the perspective of general civil law theory. The undeniable nature of property in cryptocurrency has led to an increased demand for judicial systems to effectively operate in regards to cryptocurrency. The right to cryptocurrency cannot be regarded as intellectual property rights. Cryptocurrency cannot also be regarded as a bond, as it is merely units of information listed in the distributed ledger with no counterparty. Cryptocurrency can be understood as an “things” under civil law because there is a possibility of management through an electronic wallet private key and also independence through a distributed ledger. Among the requirements of an things, the requirement of ‘corporeal things’ or ‘natural force’ can be flexibly interpreted in regards of transactions between related parties. On the other hand, cryptocurrency cannot be regarded as “money” among things. Cryptocurrency cannot function as a “measure of value”, which is a fundamental function of money, due to its inherent nature of volatility and price differences between its exchanges. As a result, the legal nature of cryptocurrency can be recognized as a things, not money, through which current existing judicial systems such as compulsory execution law and bankruptcy law becomes able to operate in regards to cryptocurrency, ultimately promoting legal predictability. However, legislation on cryptocurrency should ultimately be completed through legislation, not interpretation. This requires further in-depth discussion in academic and practice sectors.