가상자산의 압류 및 몰수에 관한 법조실무의 대응 - 미국의 역사와 경험에서 얻는 시사점 -

The cryptocurrency ecosystem evolves at a breathtaking pace. New chains emerge, and criminals constantly change their tactics, making old investigative techniques quickly obsolete. It’s impossible for government agencies to keep up. Therefore, now more than ever, law enforcement must be equipped with the knowledge and capabilities to combat cryptocurrency crime. Tracking criminal activity requires comprehensive blockchain implementation, but most solutions struggle to keep pace with the rapidly expanding ecosystem. Pig butchering criminals particularly exploit loopholes in blockchain technology, which allow them to operate undetected, effectively excluding law enforcement protections. Therefore, without comprehensive protection, organizations remain vulnerable to criminals switching platforms to evade investigation. Blockchain analytics firms’ cryptocurrency compliance solutions empower platforms to detect and block illicit activity at scale, providing the insights needed to detect irregular transactions, structured payments, or funds associated with illicit activity. Investigators and regulators need to be able to skillfully identify and securely manage digital evidence, such as cryptocurrency wallets and private keys. The purpose of this paper is to clarify the legal and procedural considerations shaping asset forfeiture in the digital economy and to review best practices for compliance, risk mitigation, and defensive strategies that will be useful to legal practitioners and industry professionals navigating this rapidly evolving field. This paper provides a comprehensive analysis of the current US government approach to cryptocurrency asset forfeiture, including the legal and regulatory framework, investigative methods, and the integration of confiscated digital assets into government reserves. Seizing cryptocurrency is more than just a legal procedure; it’s a strategic imperative for authorities. This article explains civil asset forfeiture under US law. It also provides a table summarizing the laws governing asset forfeiture in each US state, including guidance on burden of proof and forfeiture amounts. Civil asset forfeiture differs from criminal asset forfeiture. Civil asset forfeiture is considered “in rem,” meaning it targets property rather than a person. This differs from criminal asset forfeiture, which occurs when the assets of a person convicted of a crime are seized and require formal legal proceedings. Criminal forfeiture is a type of federal forfeiture that occurs when property used in or derived from a crime is seized. However, this only applies after a conviction for a crime. Critics of asset forfeiture argue that forfeiture laws create financial incentives that undue influence on police actions. Critics argue that forfeiture violates constitutional rights, targets minorities and the poor, and favors police interests. Supporters, on the other hand, argue that forfeiture is a crucial element in combating crime, particularly the illegal drug trade. This issue is unique in that it has drawn strong criticism from both ends of the political spectrum. Progressives generally criticize the practice for violating civil rights and disproportionately impacting minorities and the poor, while conservatives criticize it for violating sovereignty and individual property rights. When faced with asset seizure, it’s crucial to understand how the process unfolds, the steps involved, and potential defenses. This study analyzes the relationship between the financial incentives for forfeiture and the legal burden of civil asset forfeiture. By analyzing the relationship between the financial incentives for equitable distribution of funds from the federal government to local law enforcement agencies and the legal burden of civil asset forfeiture, it examines whether various legal incentives for forfeiture influence police enforcement behavior. In the United States, if restitution is not possible, confiscated assets, including cryptocurrencies, are transferred to the Assets Forfeiture Fund or the Treasury Forfeiture Fund. While the current system prevents US law enforcement agencies from directly utilizing seized cryptocurrencies at the agency level, policymakers are considering ways to utilize cryptocurrencies for broader government benefits. This movement suggests a broader recognition of Bitcoin as a strategic asset, potentially transforming how the government funds its operations. Congress and federal agencies are continually improving the legal framework governing digital asset seizures. Proposed reforms further expand the government’s authority to seize and hold digital assets, while introducing new procedural safeguards and transparency requirements.