중앙은행 디지털화폐(CBDC)와 민사집행

全烋在 ( Chon Huy Jae ) 법조협회 2022 法曹 Vol.71 No.2

중앙은행 디지털화폐(Central Bank Digital Currency, 이하 ‘CBDC’)는 중앙은행이 발행 및 유통하는 전자적 형태의 법정화폐를 말하는데, 최근에는 세계 각국의 중앙은행들이 CBDC를 발행하는 방안을 활발하게 모색하고 있다. 한국은행이 향후 CBDC를 발행할 경우 그에 대한 민사집행을 어떻게 규율할 것인지는 시장에서 CBDC가 성공적으로 뿌리내리는 데 있어 중요한 의미를 갖는다. 현재 법원의 집행 실무에서 전자적 형태로 재산적 가치를 갖는 비트코인이나 이더리움 등 암호자산이나 전자등록주식 등에 관하여 비교적 원활하게 압류 및 현금화 절차가 이루어지고 있다. CBDC의 민사집행 절차를 설계함에 있어서도 이미 현실적으로 이루어지고 있는 암호자산과 전자등록 주식 등에 관한 집행 실무와 이를 규율하는 법령의 내용을 참고하여 CBDC의 특성이 충분히 반영된 제도를 입안할 필요가 있다. 구체적으로 ‘계좌형’ CBDC의 경우에는 중개기관과 이용자가 개인키를 공유하거나 중개기관이 단독으로 개인키를 보유하게 되는바, 중개기관과 이용자 사이에 서비스 이용약관에 따른 계약이 체결될 가능성이 크고, 이에 따라 이용자는 중개기관에 대하여 금전채권과 성질이 유사한 CBDC 출급청구권을 갖는다 할 것이므로, 이용자의 채권자는 채권집행에 준하여 ‘압류 및 추심명령’이나 ‘압류 및 전부명령’의 방식으로 CBDC를 대상으로 한 강제집행을 할 수 있다고 구성함이 합리적이다. 이와 달리 ‘토큰형’ CBDC의 경우 이용자의 저장매체에 CBDC 정보가 저장되므로 현행 민사집행법 제201조와 유사하게 집행관이 이용자가 보유한 저장매체의 점유를 이전받아 그에 저장된 CBDC를 집행관의 전자지갑으로 옮기고 해당 저장매체를 이용자에게 반환하는 형태로 강제집행을 할 수 있을 것이다. 이러한 절차 흐름이 ‘토큰형’ CBDC의 특성에 비추어 자연스럽다고 보이나 현행 민사집행법이나 규칙상으로 이와 같은 규율이 없으므로 이를 도입하기 위해서는 민사집행법령의 정비가 필요하다. Central Bank Digital Currency (hereinafter referred to as CBDC) refers to electronic legal currency issued and distributed by the central bank, and recently, central banks around the world are actively seeking ways to issue CBDCs. If the Bank of Korea issues CBDCs in the future, how it will regulate civil enforcement is of great significance in successfully taking root in the market. Currently, in the court's civil execution practice, cryptographic assets such as Bitcoin and Ethereum, which have property value as an electronic form, and electronic registered stocks are being seized and cashed relatively smoothly. In designing CBDC's civil execution procedures, it is necessary to establish a system that sufficiently reflects the characteristics of CBDC by referring to the enforcement practices on cryptographic assets and electronic registered stocks that are already being implemented. In the case of an "account-type" CBDC, the broker and the user share a private key or the broker will likely sign a contract under the terms of service between the broker and the user. In contrast, in the case of "token" CBDC, CBDC information is stored in the user's storage medium, so similar to Article 201 of the current Civil Execution Act, the executor can transfer the stored CBDC to the executor's electronic wallet and return the storage medium to the user. This flow of procedures seems natural in light of the characteristics of 'token CBDC', but there is no such discipline under the current Civil Execution Act or Civil Execution Rules, so it is necessary to revise civil execution laws.

민사전자소송 시행 10년, 그 성과와 전망 - 민사 본안소송을 중심으로 -

전휴재 ( Chon Huy Jae ) 사법정책연구원 2022 연구보고서 Vol.2022 No.10

Electronic litigation in Korea began around 2010 when the 「Act on the Use of Electronic Documents in Civil Procedure, etc.」 was enacted and the patent electronic litigation system was established, but its origin dates back to the late 1970s. Since the Supreme Court first established the “Judicial Information Computerization Plan” in 1979, judges have developed a case search and judgment-writing program and constructed a database. Computerization of registrations and issuance of certifications were also introduced to improve judicial services to the public. With such progress of judicial informatization, calls for adoption of electronic litigation have been growing from within the judiciary, especially as judges look to other countries that adopted electronic litigation in the 1990s.  Accordingly, in the early 2000s, efforts to prepare legislation and establish systems for electronic litigation began in Korea. As a result of these efforts, the 「Act on the Use of Electronic Documents in Civil Procedure, etc.」 was enacted in March 2010. Since then, electronic systems for patent litigation have been constructed in April 2010, for civil litigation in May 2011, and for civil enforcement and non-contentious procedures in March 2015. The establishment of electronic litigation systems for all litigation areas except criminal litigation was completed within five-year period, which was prescribed at the time of enactment of the 「Act on the Use of Electronic Documents in Civil Procedure, etc.」 as the latest limit of im plementing electronic litigation. It is unprecedented that a legal system of electronic litigation was constructed in such a short period of time, even in other developed countries that have advanced legal systems. What made it possible to construct the systems quickly in Korea was its advanced ICT infrastructure that was established before the implementation of electronic litigation systems, and the Korean people who are relatively quick to adapt to new technology.  More than 10 years has passed, and electronic litigation is now the mainstream of civil litigation in Korea. Regardless of subject-matter jurisdiction, more than 90% of all civil lawsuits are filed and processed through the electronic litigation system. This adoption serves as evidence that Korea has shifted from being a fast-follower, by benchmarking countries that implemented electronic litigation systems before Korea, to a first-mover that now leads electronic lawsuits, on a par with pioneer countries.  However, to further improve electronic litigation in Korea, the judiciary must continue to examine the current state of electronic litigation around the world and draw implications for improvements. With the importance of comparative legal research in mind, this research firstly examines systems in the United States, which has implemented the electronic lawsuit system firstly in the world in the early 1990s and adopted NextGen, a next-generation electronic litigation system. This research also reviews systems in Singapore, the first Asian country that implemented electronic litigation and now seeks to innovate its system via state-led judicial reform. In addition, this research explores systems in Germany and Japan, which went through a long preparation process to carefully and thoroughly revise their Civil Procedure Acts to implement electronic litigation and are now developing systems for electronic litigation. Finally, this research reviews systems in China, which has implemented online courts and the blockchainization of electronic evidence by utilizing its advanced ICT technology.  In Korea, the establishment of the “next-generation electronic litigation system” which is expected to be completed in 2024, will be the first gateway to enter a new stage of electronic litigation. Korea needs to fully reorganize the current system, which will be outdated, to im prove access to trials, and preemptively respond to rapid social changes and technological advances caused by big data and artificial intelligence. If the “next-generation electronic litigation system” is implemented as scheduled, it is expected that an innovative and user-friendly electronic litigation environment will be created. It is, however, disappointing that there has not been any noticeable improvement in the institutional preparation for electronic litigation. The 「Act on the Use of Electronic Documents in Civil Procedure, etc.」, the lex specialis that was hastily enacted to prepare a normative basis for implementing electronic litigation within 5 years with only 16 articles remains in effect. As a result, the Civil Procedure Act, designed to lay out the rules for traditional, paper- based civil litigations, is losing its relevance to today’s real-world litigation. As new wine must be put into new bottles, the Civil Procedure Act should be amended to address the new litigation environment based on electronic litigation, and norms should be redesigned to fit the new ICT environment. It is necessary to establish infrastructure to actively utilize the remote video trials, which has suddenly become widely used due to the COVID-19 pandemic, and to develop strategies to promote a speedy and efficient trial by adjudicating small claims cases online, adapting to the current non-face-to-face and non-contact era. It is also time to carefully devise principles for the use of artificial intelligence in the judiciary based on a social consensus in order to prepare for the impending era of artificial intelligence.