디지털자산 거래의 물권적 측면에 관한 준거법

Recently, in Korea, there has been an active discussion on the regulation of digital assets transactions from the perspective of protecting digital asset users, as well as the legislative advancement,such as the Virtual Asset User Protection Act. However, with respect to the civil law aspects of digital assets transactions, including private international law aspect of those, there has been little discussion on the private international law aspects of digital assets, and even if there is, it has not received much attention. On the other hand, on the international level, UNIDROIT has been working on providing for a set of uniform principles on the private law aspects of digital assets since 2020, with the final Principles adopted in May 2023. The UNIDROIT Digital Asset Principles, which include not only substantive law principles but also principles of conflict of laws, are a step forward in terms of securing predictability and legal certainty in cross-border transactions of digital assets. In addition, the Hague Conference on Private International Law (HCCH) is preparing for a full-scale discussion on international jurisdiction and governing law in relation to digital asset transactions, and it is expected that international discussions on the private international law aspects of digital asset transactions will become more active in the coming years.
In this regard, this article examines the issues in relation to the determination of the law applicable to the proprietary issues of digital asset transactions, focusing on the trends of major foreign legislative cases, etc. and the interpretive analysis of relevant provisions under the current Korean Private International Law Act. To this end, I first examine the types of digital assets and the legal nature thereof under substantive law. Under Korean law, the DLT endogenous value digital assets (i.e., native tokens) are a special type of properties that do not exist under existing laws. On the other hand, the DLT exogenous value digital assets are those that embody or evidence rights already formed externally by digital assets, so that most of them can be included in traditional rights such as bonds and equities. Of course, in either case, it is interpreted that it cannot be to things under Korean civil law.
The primary connecting factor in the UNIDROIT Digital Asset Principles is the digital asset itself or the system in which it is recorded, which is quite similar to the primary connecting factor in Article 12-7 of the UCC in the United States, so that there may be some objections to this due to the similarity. However, I am of the opinion that the UNIDROIT Digital Asset Principles may have significant implications for the legislation of relevant substantive and conflict of laws rules in individual countries in the future. Korea has been reluctant to discuss digital asset issues and thus has not made much progress in both regulatory measures and civil law aspects. By referring to the UNIDROIT Digital Asset Principles, I hope that academia, the government and the National Assembly will actively discuss not only the regulatory but also the civil law aspects of digital assets. As the UNIDROIT Digital Asset Principles suggest, it is undeniable that it is difficult to determine the objective law of closest connection in the case of digital assets; therefore, it is necessary to be open to the introduction of a subjective connecting factor in the future, and positively consider adopting it. However, it is also necessary to discuss how to appropriately control the adverse effects of the introduction of the subjective connecting factor on the proprietary issues.