지급수단의 법적 측면에 대한 연구

Abstract

A study on the legal aspects of payment instruments began by discovering the legal problem of user protection in various phenomena arising from changes in payment instruments due to technological development. The first legal issue recognized was the cash payment option right. As time goes on, the places where you can use cash start to decrease, and now you can easily find situations where people refuse to use cash. If a user who has only cash and does not have a car visits a hospital when he or she is sick and is denied the use of public transportation for using cash, he or she can face a very embarrassing and hopeless situation. From my point of view, that case did not seem to be a desirable phenomenon, and I came to think of the need to review what kind of legal problems there are. The cause of the problem of cash payment options right in the Republic of Korea, which has already entered a low-cash society, is that the use of credit cards and prepaid electronic payment instruments has rapidly increased as new payment instruments called 'simple payment' and 'simple remittance' have been used. The COVID-19 infectious disease pandemic that occurred in early 2020 had a social impact in many ways, but in particular, the government provided a large number of disaster subsidies supported through local governments in so-called 'local currency', supporting simple payment and simple remittance. It also dramatically increased the number of uses of local currency. Simple payment is an electronic conversion of credit card payment information, and credit card companies issuing credit cards are subject to significant financial regulations, so it was difficult to see that there was a user protection problem. However, it was found that simple remittance deviated from the original purpose of prepaid electronic payment and included various problems in user protection. In particular, there was a serious legal problem with the protection of the user's deposit, which is the prepayment that the user has to pay to the electronic financial company to use the prepaid electronic payment means. In case credit risk occurred to the electronic financial business, there was no legal way for users to check their user deposits in the electronic financial business's bank account. The same problem also occurred when a user made a mistake using prepaid electronic payment instruments. Moreover, when an electronic financial company self-clearing transactions of prepaid electronic payment instruments between users, this problem is further aggravated. New problems that could not be found in transfers between bank accounts using the Internet were emerging, and it was soon found that they were related to the payment system. This is because the confirmation of legal rights to user deposits differs depending on the case where the payment system is involved and the case where it is not. If so, can it be solved by making it mandatory for prepaid electronic payment transactions to go through the payment system for the protection of users? Looking at the payment system from this point of view, there was a problem with the current payment system itself. As the KFTC, the only small-amount clearing institution in the payment system carried out clearing without legal grounds for clearing, the legal effect of clearing was in an unstable state. There was a possibility that the legal effect of the clearing achieved through payment transactions between users have already been terminated by electronic prepaid payment means, but the KFTC's clearing effect does not take place, so if a situation arises where the user cannot convert the amount corresponding to the prepaid electronic payment instruments to legal currency, as a user, it would suffer economic damage as much as the insufficient amount, and it seemed that legal supplementation was necessary in some way. The discovery of these problems served as an opportunity to reexamine central bank digital currency and virtual assets, for which many research results have been published recently, from the perspective of user protection. However, since various types of central bank digital currency and virtual assets have not yet been legally introduced as means of payment instruments, and various types are being discussed, it was necessary to precede the work of reviewing types that could be introduced as payment instruments compared to the current legislation. Based on the review results by type, we examined whether there are any problems with user protection when central bank digital currency and virtual assets were introduced as payment instruments. The purpose of this study is to comprehensively identify the legal challenges resulting from changes in payment instruments due to technological development and to suggest improvement measures centering on the protection of users. To this end, in this study, payment instruments were divided into 'government-led payment instruments' issued by the government and operated by the government, and 'market-led payment instruments' used in the market. Through this study, the conclusion to the question of how the financial regulatory laws related to payment instruments should be changed in order to protect users from various phenomena caused by changes in payment instruments is as follows. With respect to changes in the government-led payment method, legal improvements to protect users were sought, focusing on securing cash payment options, maintaining the principle of minimum intervention, and protecting personal information and privacy. First, it is necessary to revise the 「Bank of Korea Act」 to secure the option of cash payment in terms of financial inclusion in a low-cash society. It is interpreted that the compulsory circulation of legal currency stipulated in Article 48 of the same Act can be excluded by agreement of the parties, so it is difficult to secure the option of cash payment only with that provision. Second, in order to introduce CBDC, a new regulation must be established in the 「Bank of Korea Act」, and in order to maintain the principle of minimum intervention implicit in Article 79 of the same law and to protect the privacy of private life, brokerage-token-type-distributed ledger for micropayments considering that it is appropriate to issue in a form, and considering that it is a government-led payment method, non-financial companies among participating institutions that will be entrusted with CBDC business must be given a real-name verification duty or an external clearing duty. Third, under the current law, it is appropriate to leave local love gift certificates only in the form of securities and prepaid electronic payment instruments, and block the issuance of prepaid cards in accordance with Article 2, Subparagraph 8 of the 「Specialized Credit Financial Business Act」. In addition, local currency should be deleted from the definition of Article 2, Subparagraph 1 of the Local Love Gift Certificate Act. Next, with respect to changes in market-driven payment instruments, a comprehensive review was conducted focusing on the principle of first performance and later dispute and the principle of equal function, equal risk, and equal regulation for electronic payment instruments, payment business, payer, and payment system. Regarding the means of payment of virtual assets and the metaverse platform, legal improvement measures for user protection were sought in consideration of the legal concept of money under financial regulation laws. First, in order to cover the payment business of non-financial companies separately from the exchange business of banks, unification of electronic payment instruments centered on the movement of funds, definition of user accounts, new management of user entrusted funds, participation of non-financial companies in the payment system, it is necessary to prepare a legal basis for clearing and clearing institutions and supervisory institutions in the payment system. It is appropriate for the Financial Services Commission to take charge of this. Second, in order to confirm users' rights and protect deposits in case of credit risk of non-financial companies engaged in payment business, large-scale non-financial companies are obliged to participate in the payment system and external clearing, and for small non-financial companies, depending on the user's choice, it is appropriate to use an external clearing institution of KFTC. In addition, a legal basis is needed to ensure the legal effect of the clearing of the clearing institution. Third, in the case of virtual assets, it is appropriate to classify them according to the type, and avoid non-collateralized virtual assets as they can lead to instability of the financial system if they are accepted as payment instruments under the financial regulation laws. However, there is a possibility that decentralized and non-collateralized virtual assets can be accepted as a means of payment under the financial regulation laws. Next, there are various types of collateral-type virtual assets, but on the premise that the electronic financial regulation laws of the 「Electronic Financial Transactions Act」 are unified centering on the function of transferring funds, legal tender-type stablecoins may be accepted among the electronic financial regulation laws. keywords : Payment Instruments, CBDC, Virtual Asset, Electronic Financial Transactions Act, Metaverse Platform, Payment System

이 연구의 목적은 기술의 발전으로 인한 지급수단의 변화에 따른 법적 과제를 통합적으로 확인하고, 이용자의 보호를 중심으로 개선 방안을 제시하는 것이다. 이를 위해 이 연구에서는 지급수단을 정부가 발행하고 운영의 주체가 되는 정부 주도형 지급수단과 그 외에 시장에서 활용되는 시장주도형 지급수단으로 구분 하여 논의하였다. 정부주도형 지급수단으로 법정화폐와 중앙은행디지털화폐를 중심으로 논의하였다. 법정화폐는 강제통용력의 법적 성질과 함께 금융포용성을 위하여 현금결제선택권의 보장을 논의하였다. 중앙은행디지털화폐는 도입 방식을 분류하고, ｢한국은 행법｣ 제79조에 내재되어 있는 최소개입의 원칙에 따라 중개형-토큰형-분산원장형 방식을 제안하였으며, 중앙은행디지털화폐의 지급결제시스템상 참가기관에 실지명의 확인과 외부청산 의무에 대해 논의하였다. 시장주도형 지급수단으로는 선불전자지급수단과 가상자산을 중심으로 논의하였다. 지급수단의 변화에도 불구하고 이용자예탁금 보호와 권리 확인을 위하여, 선불전자지급수단을 중심으로 지급수단과 지급결제시스템의 법적 관계에서 발생하는 문제점을 지적하고, 그 대안으로 금융결제원과 같은 청산기관을 활용하는 방안을 제시하였으며, 나아가 청산기관의 독립성과 감독권, 청산과정에서 다자간 상계의 효력에 관한 지급결제시스템의 법적 공백상태를 지적한 후 개선방안을 제시하였다. 가상자산에 대해서는 담보 여부를 기준으로 비담보형 가상자산과 담보형 가상자산으로 나누고, 비담보형 가상자산을 다시 비트코인형･이더리움형 가상자산으로 구분하고, 담보형 가상자산을 법정화폐형･가상자산형･알고리즘형 스테이블코인으로 구분하여, 각각의 구조를 조합･현상광고 등의 전형계약과 알고리즘계약･스마트계약 등의 비전형계약을 활용하여 분석을 시도한 후, 현행 법제와 비교를 통해 수용가능성을 타진하였고, 법정화폐형 스테이블코인이 선불전자지급수단과 유사한 구조임을 제시하였다.