가상자산의 지배와 민사법적 성질: UNIDROIT 디지털자산 원칙과 스위스 DLT 법률의 내용 및 국내 논의에 대한 시사점

Abstract

This paper examines the civil law status and implications of virtual assets based on distributed ledger technology, such as blockchain, through an analysis of the UNIDROIT Digital Assets Principles and relevant provisions of Swiss DLT legislation. It further offers insights into the implications for domestic legal discussions. The primary focus of this paper lies in addressing the property status of virtual assets, the legal standing of their holders, the control, transfer, and acquisition of virtual assets (including acquisition by bona fide purchasers), and the contractual legal relationships regarding the right to reclaim virtual assets held in custody by customers in the event of the bankruptcy of virtual asset exchange operators (virtual asset service providers). In addressing the civil law treatment of cryptocurrencies, this paper explores the following key points: (1) The recognition of intangible economic value (and the rejection of their classification as "property"), (2) The acknowledgment of economic value recognized by market practices rather than by the state's legal order (with a passive stance towards their status as "rights"), (3) The recognition of factual control over cryptocurrencies, the presumption of legitimacy in possession, and the acceptance of bona fide acquisition to ensure transactional security, (4) The protection of cryptocurrencies, as economic assets, from unauthorized intrusions such as hacking or theft, encompassing claims for tort liability, unjust enrichment, and the potential analogical application of possessory restitution claims, and finally, (5) The trust-like construction of deposit and mandate relationships between exchanges and users, and the recognition of the users' right to reclaim cryptocurrencies held in custody in the event of an exchange's bankruptcy. While examining foreign legislative precedents, this paper considers that certain aspects of the discourse surrounding virtual assets may vary depending on the political and social circumstances of individual countries. However, some of the issues addressed are of a more general nature, unlikely to be easily influenced by national policy orientations. In particular, the recognition of customers’ rights to reclaim their assets upon the bankruptcy of an exchange is highlighted as a significant issue. While this matter cannot be solely reduced to a civil law perspective—requiring consideration from social and financial policy standpoints—it is argued that from a legal theoretical perspective (based on the trust-like construction of the relationship), a comparative analysis with similar situations (such as the commingling of securities), and the duty to distinguish between the proprietary assets of the exchange and the custodial assets of customers in the allocation of assets during insolvency should serve as a foundational basis for resolving the issue.