NFT에 관한 최신 해외 판결 연구 및 민법 개정 제언

NFT, which stands for non-fungible token, refers to data on the blockchain with the characteristic of being irreplaceable and unique. Additionally, NFT cannot be edited or deleted, making them a highly reliable means of proving ownership. Anyone can track the process of transferring ownership on the blockchain. While NFT are used in various industries such as art, securities, gaming, finance, fashion, and the metaverse, the lack of clear legal characterization and regulatory frameworks has led to confusion and disputes. In South Korea, there are ongoing discussions regarding the legal nature of NFT. Some argue that NFT fall under the category of "things" in the Civil Act, based on the argument that only the owner of the electronic wallet's private key can initiate transfers, implying exclusive control. Others claim that NFT are digital tokens functioning as electronic certificates, and therefore, ownership regulations should be inferred based on the similarity between NFT holders and holders of things. There are also arguments stating that NFT can be considered quasi-property rights due to their exclusive control. On the other hand, some argue that NFT are not objects of ownership but rather function as non-legally binding certificates of rights or digital proofs. They claim that NFT are neither things nor the subject of quasi-property rights. Recent legal decisions regarding NFT will serve as milestones in the discussions and disputes surrounding NFT. In the United States, there was a case where an NFT creator produced and sold an NFT image of a Birkin bag without permission from the global fashion company Hermès, resulting in a court order for damages and a sales ban. The creator argued that his NFT is an artistic expression protected under the First Amendment to the U.S. Constitution, but the court denied this claim and granted Hermès' motion for injuction and damages. In a UK case involving NFT theft, the court granted the victim's motion for proprietary freezing injunction, recognizing NFT as objects of property. In a Singaporean case involving NFT collateral, the court recognized NFT as property and collateral, considering their specificity, identifiability, exclusive ownership rights, and electronic form's persistence and stability, akin to a bank account. In Anglo-American legal system, property is divided into real property (land) and personal property (everything except land). Considering that all property (things, stocks, cash, checks, patents, copyrights, intangible property rights, etc.) other than land is personal property, global judgments have widely recognized NFT as properties eligible for legal protection. If these global decisions applied in South Korea, NFT could be recognized not only as things under the Civil Act but also as a broader range of property rights. However, directly applying the legal principles of Anglo-American legal systems to the civil law system in Korea would not be appropriate. Specifically, while countries like the United States, the United Kingdom, and Singapore have rapidly adapted to the advancements in science and technology and established legal frameworks for victim protection and transaction safety through case law, the legislative process in Korea is proceeding at a notably slower pace. Therefore, the urgent need to establish a legal framework that accommodates technological advancements is apparent. In this regard, it may be beneficial to reference some legal principles derived from case law in Anglo-American legal system. These pioneering overseas rulings are likely to serve as precedents in future NFT-related disputes, making them valuable for research purposes. Finally, this study proposes an amendment to the Korean Civil Code, specifically adding "works produced electronically" to the requirements of Article 98 of the Civil Code, in pursuit of harmony between technological advancements and legal principles.