가상자산에 대한 민사집행에 관한 소고 -비금전채권에 기한 집행을 중심으로

Abstract

Due to the anonymity and decentralized nature of virtual assets, including various coins, which are gaining increasing social and economic importance as intangible property, it is virtually impossible to enforce against them unless the holder discloses the private key. Despite these difficulties, efforts are being made by academics and practitioners to solve the problem of civil enforcement of virtual assets, but in the absence of legislation, the only way to deal with the problem is to apply or infer the legal principles of existing civil enforcement laws and precedents. However, while the enforcement practice of courts has been shaped to some extent by existing research on the enforcement of virtual assets in monetary debts, there is still no clear standard for the enforcement of virtual asset transfer claims, which are non-monetary debts. This article mainly examines whether direct enforcement, indirect enforcement, and substitute enforcement methods for non-monetary debts are applicable to the enforcement of virtual asset transfer claims. In addition to the theoretical analysis of the judgment of the vicarious compensation claim for delivery of virtual assets and unenforceability, which are mainly used in current practice, this article suggests that the complementary principle of indirect enforcement should be relaxed and applied so that effective enforcement can be achieved through indirect enforcement against debtors who do not provide private keys. On the other hand, the opinion that alternative enforcement should be used to enforce the transfer of virtual assets based on recent discussions in Germany was opposed, citing the differences in enforcement systems and practices between Korea and Germany. In addition, the opinion that it is appropriate to allow seizure and transfer orders under Article 259 of the Civil Enforcement Act in cases where the debtor entrusts the virtual assets to a virtual asset provider.