암호화폐 관련 범죄에 대한 형사법적 고찰

Abstract

Crpytocurrency-related crime has been increasing rapidly in recent years and types of the illicit activities has become more and more various, which results in ever growing scales of damage. Nevertheless, under the existing Criminal Law, which has no clear provisions regulating crypto crime, no measure can be directly applied to the illicit activities in accordance with the principle of legality. Consequently, criminal sanctions are not effectively provided no matter how serious the crime is. This essay defines cryptocurrency as ‘information with property value’ which will be considered as ‘pecuniary advantage’ from the concept of benefit and protection of the criminal law. Alternately, this essay suggests that cryptocurrency should be defined as ‘property’ so Criminal Law regulates the crypto crime. This essay categorizes types of crypto crime - ‘system hack’, ‘cryptocurrency target crime’, and ‘cryptocurrency usage crime’ - to enact special act which will properly regulate the elements of crime and culpability of each type of crime. In respect of system hack, the law should oblige the cryptocurrency exchange to separate its proper properties and customers’ deposits to protect customers’ portion from hacking. In respect of cryptocurrnecy target crime, the cryptocurrency exchange should be mandated to guarantee the transparency of transactional information. For expedite proceedings the investigative agency will be allowed to aquire the transactional information from the Korean Financial Intelligence Unit under the permission of the court. In respect of cryptocurrency usage crime, criminalization of production, transaction, and acquisition of the Dark coin is desperately needed. More effective way to prevent the crypto crime is to block the illegal gain from the crime to be realized. To do so, subject of confiscation is to be revised from ‘goods’ to ‘property’. Furthermore, legislators should consider the exceptional permissions for seizure of copied evidence and execution of digital seizure and search warrants, and codification of duty to cooperate of cryptocurrency exchange. Criminal code must be clear and plain because it inherently has both attributes of protection of rights and restriction of rights. In this regard, it is imperative to enact the special act on cryptocurrency-based crime not to regulate the crime with stopgap measures by adding provisions to any other related laws.