가상자산 거래의 법제화와 착오이체의 법적판단에 관한 시론(試論) – 대법원 2021.12.16. 선고 2020도9789 판결을 대상으로 -

Recently, transactions of virtual assets based on blockchain technology have been increasing tremendously, causing various social problems. Mistaken transfer of virtual assets is one of them. The Defendant in this case used virtual assets remitted by mistake without storing them and refused to return them. The virtual asset that was mistakenly transfered was 199.999 Bitcoin, which was equivalent to 1,487,235,086 won at the time. In this regard, the district court recognized the establishment of a breach of trust by inferring the legal principle of mistaken transfer of legal currency, while the Supreme Court denied the establishment of a breach of trust. The Supreme Court identified the nature of virtual assets and distinguished them from legal currency, and denied the value of protection under the criminal law based on the lack of regulations and the risk of transactions. Therefore, it was judged that inferring the legal principle of mistaken transfer of legal currency was contrary to the principle of nulla poena sine lege. However, with the revision of the Act On Reporting And Using Specified Financial Transaction Information in 2021, the nature of virtual asset transactions is changing significantly. The Virtual asset service provider assumes obligations equivalent to existing financial companies, and the anonymity of virtual asset transactions has been virtually made real through legalization. Therefore, this article tries to review the legalization of virtual asset transactions, and apply the Supreme Court's legal principles on the mistaken transfer of virtual assets to the changed situation to reinterpret the establishment of a breach of trust.