Although this is a lower-court decision, the Busan District Court Western Branch, in Case No. 2017GaDan11429, issued a judgment partially granting a claim for the delivery of Bitcoin and an alternative claim for the subject matter of the claim, on the premise that cryptocurrency (Bitcoin) may be subject to a claim for delivery.
The Supreme Court had previously recognized Bitcoin as subject to confiscation in a criminal case (Supreme Court Decision No. 2018Do3619, rendered on May 30, 2018). However, in that case, Bitcoin was considered subject to confiscation specifically because the Act on Regulation and Punishment of Criminal Proceeds Concealment defines property subject to confiscation as including not only tangible assets having economic value but also “intangible property” (Article 2, Paragraph 2 of the Act on Regulation and Punishment of Criminal Proceeds Concealment). Accordingly, it may be understood that Bitcoin is recognized as subject to confiscation under criminal law only in the context of the concealment of criminal proceeds.
Civil litigation is different. Under the Civil Act, the subject matter of a claim for delivery of movable property is a “thing,” which presupposes either a corporeal object or something capable of being controlled. Delivery of a thing means the transfer of possession.
However, the essence of Bitcoin is a right over information—specifically, an exclusive right to modify transaction information stored on the servers of Bitcoin nodes by using a public key and a private key. Accordingly, Bitcoin, as an embodiment of such an exclusive right, should not be regarded as a “thing” under the Civil Act, and possession of Bitcoin cannot therefore be transferred. This is because Bitcoin is clearly not a corporeal object and cannot readily be regarded as a controllable natural force.
Furthermore, even at the stage of compulsory enforcement, there is a possibility of confusion as to how a judgment granting a claim for delivery could actually be enforced with respect to Bitcoin.
For these reasons, the judgment in this case granting a claim for the delivery of Bitcoin appears open to criticism.
Therefore, if a claimant wishes to recover Bitcoin, rather than bringing a claim for the delivery of Bitcoin itself, it would appear more appropriate to bring an action seeking specific performance—for example, an order requiring the defendant to use the public and private keys under the defendant’s exclusive control to modify the transaction records stored on the Bitcoin blockchain so that the claimant can obtain exclusive control over the amount of Bitcoin claimed.