가상자산의 법적 성질과 가상자산법의 입법방향

It is fortunate that the government is actively promoting legislation, albeit late, for the development of the virtual asset market and is making efforts to improve the market despite various negative factors. For effective regulation of the virtual asset market, it is important to create a regulatory model that takes into account the characteristics of the virtual asset market. Simply transferring the regulatory model of the capital market as is does not take into account the difference between the capital market law based on real things and the world of virtual assets, which deals with virtual assets, so the characteristics of the virtual asset market must be taken into consideration. First, it should be considered that the virtual asset market is a market where transactions take place 24 hours a day, and where safe investment products called blockchain technology, which are not provided in the public sector, are traded. In view of this, the fact that the existence of records is so clear that transaction status can be traced is very important in terms of the safety of transactions and clarity of responsibility in the virtual asset market. Second, the roles of exchanges and virtual asset exchanges in the capital market are different. The Capital Market Exchange is the creator of the market and acts as a so-called Central Counter Party (CCP) between sellers and buyers and between CCP and its members. However, the virtual asset exchange simply provides a so-called platform where sellers and buyers can transact, and cash withdrawal is only possible through financial institutions where virtual assets are designated, so the stability of the payment procedure is ensured, but there are no laws regarding it. This is because it is difficult to view it as taking personal responsibility. Third, the current business scope of virtual asset business operators is extensive in both the Specific Financial Information Act and the Virtual Asset User Protection Act. In other words, it is possible to engage in all activities such as buying, selling, exchanging, transferring, storing or managing virtual assets, and brokering, arranging or acting as an agent for the sale or exchange. This raises concerns about conflicts of interest, and if a small-scale virtual asset exchange conducts all operations, this may also increase risk factors in the market. Therefore, it is necessary to establish a legal basis for obligations such as fiduciary duty as a virtual asset trustee, which basically includes fiduciary duty and loyalty for each business activity. In addition, it is appropriate to subdivide and regulate the duties of virtual asset operators according to their specific business practices. In other words, the authorization or registration system should be reorganized according to trading, brokerage, advisory, discretion, storage, evaluation, etc., and specific principles should be established for each business operator's obligations for each business activity, and self-regulation should be implemented accordingly.