블록체인과 비트코인(가상화폐)의 법적 문제

Abstract

Bitcoin(BTC), a virtual currency or also referred to as digital currency, is rapidly growing in its use and influence. Bitcoin was originally designed as the first successful digital currency or cryptocurrency. Digital currency or cryptocurrency is a new conceptual property that has not been accounted for in our existing legal system. In spite of the current social and economic influence of bitcoin, there is no legal system to regulate it. Now the emergence of virtual currency like bitcoin is no longer negligible. At present in private law, the concept of rights is mainly focused on representing concepts of 'object', 'human ability' and 'service'. Through this existing legal system, it is necessary to examine whether the legal identity of bitcoin in both private law and public law can be established and how the judical structure can be applied in real transaction. The existing legal system cannot give bitcoin the legal status of a currency. In addition, the legal status as a good is also subject to the dual legal standards of non-recognition through jurisprudence of private law and recognition through jurisprudence of public law. This dual status leads to the unreasonable consequence that the bitcoin owner receives legal protection but does not bear the obligation. In order to resolve this irrationality, an active legal system will be needed. Such an active legal system would include methods of extension of the concept of rights and methods of regulation specifically for bitcoins. The simplest solution to expand the concept of rights could be by adding a provision that recognizes the bitcoin as a virtual currency or a potential good and gives it rights. In this case, the value as a good will be based on the market price at the time of the transaction within the blockchain. As a method of establishing special regulations, the concept of bitcoin and blockchain transaction should be presented, and the bitcoin value determination method and the legal question created by its transaction method should be defined. However, even if the legal status of bitcoin as a good is acknowledged through these regulations, it is not possible to apply the money laundering laws and foreign exchange control laws that were created for real currency. This problem can only be solved by introducing the legal status of money to bitcoin. Therefore, it will be suggested to recognize the concept of an alternative currency within another ledger (the blockchain) besides of the legal tender. Bitcoin was proposed as a means of payment and if it functions as one, it will be possible to recognize its legal status as money by evaluating the market price in the blockchain. However, since bitcoin currently functions as a measure of value inadequately, its legal status as money can only be recognized after its value sufficiently stablizes. Unlike a system managed by a central server, the blockchain system ensures transparency because data is stored in all nodes, making it difficult to be hacked, falsified or tampered with. In addition, there is an advantage in that the transfer processing speed is high and the other administrative processing costs are reduced by directly transferring data between individuals. The emergence of bitcoin is an indispensable and indisputable reality of the Fourth Industrial Revolution that provides a digital economic environment through new IT. It should even be encouraged based on the trend of technological innovation and globalization. However, there is an arising question whether the governmental authority can be exerted onto an economic society, in which individuals can form their own blocks on their personal computers and directly communicate with each other (a peer-to-peer network). In order to do this, there needs to be a careful legal policy consideration to balance social justice and individual freedom.