암호화폐에 관한 형법상의 최근 쟁점

Abstract

A world where more than 1,000 cryptocurrencies, including Bitcoin, exist has arrived. Accordingly, the number of people who invest and own has increased rapidly, and crimes using cryptocurrency has increased as well. Since the Supreme Court's precedent for the confiscation of Bitcoin came out in 2018, issues of cryptocurrency and its treatment in criminal law have been raised. First of all, even though Bitcoin is called cryptocurrency, it only has some of the characteristics of commonly used “currency.” Also, it is different from “legal currency,” which is a currency in its full meaning. Since it exists in an electronic form of information, it cannot be regarded as existing in the world of matter. Therefore, Bitcoin does not correspond to neither ‘goods’ nor property under the criminal law. But, there are property interests. Accordingly, there is a need to discuss how to treat Bitcoin, which is not a property that exists in material world, under the criminal law. There is also a need to compare bitcoin with game money, which appeared after the appearance of computer games, about similarities of their nature to determine whether or not Bitcoin should be viewed as a new existence. One of the new problems is whether a property crime is established under the criminal law for Bitcoin, which is has property benefits but not a property. The Supreme Court's position on Bitcoin, or cryptocurrency, was summarized by comparing the previously electronically remitted Hong Kong dollar with the case on Bitcoin's mistaken transfer. In the crime of breach of trust and embezzlement, the difference between property and property interests became an important difference, and the difference resulted in a change in the legal inclusion. Therefore, through this study, the current Supreme Court's view of cryptocurrency is summarized through the case studies, and it was determined whether the currency was included under the current criminal law system. Under the current criminal law, the subject of confiscation is limited to “objects,” so Bitcoin does not fall under “objects.” Also, it is impossible to include breach of trust and embezzlement due to “property interests.” As a result, this study proposes a plan to include cryptocurrency by revising some parts that cannot be included within the scope of not significantly damaging the current criminal law system. This includes dividing parts of law into confiscation, breach of trust, and embezzlement. This study hopes that the law will be revised through the study to make up for the deficiencies of the law so that the suspect cannot profit from the crime and at the same time that the victim's property can be protected within the legal system.