NFT에 관한 민사법적 고찰 - NFT의 사법적 성질과 권리의 대상을 중심으로 -

Abstract

NFT(non-fungible token) is encrypted tokens that will make a big difference to many industries by fundamentally changing our lives. As the possibility of using NFT increases, interest in legal issues in issuance, transactions, and application of NFT is also increasing. NFT refers to a digital token (certificate) as a kind of encryption means that represents the right to digital assets using a blockchain. In other words, it has a unique value (ID) or attribute, so there is no fungibility with other tokens. This can make data have scarcity and uniqueness. NFT can be said to be a technology that records digital ‘certificates’ that bind data and its holders on the blockchain. By utilizing smart contracts, a program that automatically executes transactions according to predetermined rules, NFT can also establish a structure that returns part of the price of the second distribution transaction to creators. The usefulness of NFT includes securing the scarcity and uniqueness of digital content, guaranteeing and proving ownership of assets, high cash flow, realizing access to NFT marketplaces, and returning the price to creators. It can be said that these characteristics of NFT strengthen the ‘property of ownership’ of digital assets. Since NFT exists only as data issued as a digital token of a blockchain, it lacks fluidity and cannot be regarded as an electricity or other manageable natural force, so it is difficult to fall under civil law. Therefore, it will be difficult to establish ownership of NFT. There are views that the judicial nature of virtual assets affirms the property of data, denies the object of ownership, and requires new rights and policies. In the case of NFT, since the market is formed through the NFT platform, which is the place of sale, it is necessary to review whether the NFT itself can be viewed as an object of property rights under civil law, apart from the rights displayed in the NFT. As the object of the rights represented by the NFT, whether the copyright on the digital content itself can be transferred according to the transfer of the NFT art is determined by a reasonable interpretation of what the party intended for the transfer. In the case of trading NFT, which represents the right to spot assets, it is necessary to check what rights the NFT represents in the terms of use of the NFT platform, and how it guarantees the linkage between the transfer of NFT and the transfer of rights related to the spot assets indicated on the NFT.