디지털자산 거래의 물권적 구성에 관한 연구: UNIDROIT 디지털자산원칙과 미국 UCC 제12편을 소재로

Despite the enforcement of the Virtual Asset User Protection Act, various regulatory and legal aspects of the Act need to be supplemented through the second stage legislation, as well as legislative gap-filling regarding the legal nature of the rights held by virtual asset holders and the legal aspects of virtual asset transactions, such as collateral transactions. In other words, it is obvious that the private law aspects (especially, foundation of the rights in rem) of the possession (static aspect) and acquisition and disposal (dynamic aspect) of digital assets, including virtual assets, is an essential element for ensuring predictability and providing legal certainty for participants in digital asset transactions. In terms of the static aspect, digital asset holders must be able to assert their property rights over the digital assets against third parties, and if they hold digital assets through intermediaries such as virtual asset trading platforms, i.e., virtual asset exchanges or virtual asset custodians, there must be a legal basis for asserting their proprietary rights even in the event of the bankruptcy of the intermediaries. In addition, from a dynamic perspective, a transferee or a secured party must be able to exclusively hold digital assets and exercise relevant rights without any adverse claim of the transferor or the secured party, as well as other right holders, in order to ensure a smooth transaction. In this regard, this paper presents in detail the principles and rules relating to the civil law aspects of digital assets as stipulated in the UNIDROIT Digital Asset Principles adopted in May 2023 and the UCC Article 12 of the United States which has been finalized earlier than the UNIDROIT Principles, and then briefly reviews related discussions in Germany, Switzerland, the UK, and Japan. In doing so, I have drawn implications for the improvement of Korean law and present the direction for legal reform. At present, Republic of Korea is mainly engaged in legislation discussions related to the regulatory aspects of virtual assets, and the civil law aspects that form the legal basis of such virtual asset transactions have not been discussed in depth. In this regard, I hope that more in-depth legislative discussions will be held based on the direction presented in this article.