가상통화 거래의 국제법적 문제에 대한 고찰

Abstract

The regulatory law of cryptocurrency, the useful potential of cryptocurrency is also recognized. On the other hand, in countries that have fallen into the foreign exchange crisis, etc., there is a movement to avoid their own currency and use Bitcoin to escape, use it for payment of illegal transactions or money laundering, and a movement to use it to finance terrorism by IS countries, etc. reached. Therefore, in accordance with the international agreement at the G7 summit in Elmau, Germany in June 2015 and the guidance of the FATF (Financial Action Task Force) that received it, it was decided that regulation by the license system or registration system should be implemented. However, when cryptocurrency transactions are made between countries and disputes arise there, complex problems arise. In the case of cryptocurrency transactions made using distributed ledger technology, ① which country court has jurisdiction (a matter of international jurisdiction), ② to what extent are regulations of each country applied offshore (problem of offshore application of regulations), ③ A legal problem that transcends national borders, such as which country’s law applies (a matter of private international law and governing law), easily arises. For these cross-border legal issues, there is an existing legal framework for each issue, but since it is a cryptocurrency using distributed ledger technology, it is a question whether any special legal framework or consideration is necessary. In disputes that may arise regarding cryptocurrency, the cryptocurrency itself will be diverse (as already described, there are not only cryptocurrencies that do not have an issuer such as Bitcoin, but also tokens that are used for financing because a specific issuer exists), a variety of parties will be able to engage in cryptocurrency transactions made using distributed ledger technology. In other words, it is possible to think of various things such as transaction parties such as customers of cryptocurrency transactions, issuers of cryptocurrency with issuers other than cryptocurrency exchange companies, operators of platforms, developers of applications, manufacturers or sellers of hardware, and nodes of block chains. In addition, the type of dispute also includes claims for performance or damages on the ground of default, and claims for damages on the ground of torts, as well as the return or attribution of cryptocurrency or property values ​​or assets marked by the cryptocurrency. We can also think of a claim for property rights to fight against it. In relation to regulatory laws, the recipients of regulations may also vary by reflecting the differences in the structure and stakeholders between financial transactions using distributed ledger technology and traditional transactions centered on conventional financial institutions. Therefore, the legal framework to be applied and the issues to be considered are different depending on the issue of international jurisdiction, extraterritorial application of regulations, and applicable law, depending on what kind of cryptocurrency or between the parties. Although it is not possible to review all of them in this article, first, the legal issues related to cross-border cryptocurrency trading are reviewed. After reading the report of the Committee, I would like to review the basic ideas and some specific issues regarding international jurisdiction, extraterritorial application, and applicable law.