가상자산(암호화폐 등)의 법적 성질과 민사집행

Virtual assets are defined as electronic tokens that possess economic value and can be traded or transferred electronically. The method of civil enforcement for virtual assets (including cryptocurrencies) varies depending on whether the enforceable title is a monetary claim or a claim for the transfer (delivery) of virtual assets. On the other hand, such enforcement method may differ depending on whether the debtor directly manages the virtual assets by holding the electronic wallet and private key or entrusts them to a third-party, such as an exchange. To begin with, let us consider cases where the enforcement claim is a monetary claim. First, if the debtor entrusts the management of virtual assets to a virtual asset service provider (exchange) and holds a monetary claim, the enforcement procedure applicable to ordinary monetary claims shall apply. If the debtor holds a right to claim the transfer (delivery) of virtual assets, the enforcement method varies depending on the legal characterization of such right. While there is a view that the method of compulsory enforcement for tangible property should be applied, it is more appropriate to adopt the enforcement procedure applicable to claims for the transfer of virtual assets as a type of other property right. The method of monetization primarily relies on transfer orders or sale orders. Second, when the judgment debtor directly holds an electronic wallet, obtaining a it is necessary to know the private key managed by the debtor to ensure the effectiveness of the enforcement. Consequently, this has led to the greatest divergence of opinions regarding the enforcement method. There are views advocating for the treatment of virtual assets as tangible property and the theory of unenforceability, which asserts that enforcement is impossible due to the lack of civil enforcement methods suitable for virtual assets under current law. However, the prevailing view supports the application of enforcement procedures applicable to other property rights, a position consistent with both our legal practice and the majority opinion in Japan. Given that virtual assets lack a physical form, they cannot be subjected to enforcement methods applicable to tangible property. Furthermore, in light of the legislative intent of Article 251(2) of the Civil Execution Act, the theory of unenforceability which argues that a creditor possessing an enforceable title lacks the means to seize the debtor's assets, is difficult to accept. Under current law, the most appropriate method of enforcement for virtual assets is the procedure applicable to other property rights. If the debtor refuses to disclose the private key (password) despite a seizure order, compulsion through the asset disclosure procedure may be deemed appropriate. In cases where the enforcement claim is a non-monetary claim (such as a claim for the transfer or delivery of virtual assets), if the judgment debtor directly holds the electronic wallet, the nature of the obligation constitutes a duty of irreplaceable act that necessitates the debtor's cooperation (e.g., disclosure of the encryption key). Accordingly, enforcement may be compelled by applying Article 261 of the Civil Execution Act concerning indirect compulsory enforcement, mutatis mutandis. If the debtor holds a claim against a third party for the transfer (delivery) of virtual assets, enforcement may be carried out by applying mutatis mutandis Articles 257 and 259, which govern the compulsory enforcement based on claims other than monetary claims, particularly in cases where the movable property to be delivered is in the possession of a third party.