「자본시장과 금융투자업에 관한 법률」상 ‘투자계약증권’ 개념에 대한 검토 - 미국 연방증권법상 ‘투자계약’(investment contract)과의 비교법적 검토 -

In August 2007, a new law, namely the Capital Market and Financial Investment Business Act(the “CMFIBA”), was legislated to become effective early 2009. The CMFIBA will introduce a comprehensive definition of “security” that encompasses the brand-new concept of “investment contract security”. Article 4(6) of the CMFIBA defines that the “investment contract security” means “an instrument evidencing contractual entitlement under which an investor invests money, etc. in a common enterprise with other person(including another investor) and profits and losses resulting from the common enterprise primarily run by other person belong to the investor.” Ministry of Finance and Economy of Korea that initially drafted the definitional provision declared that it intended to import the so called Howey test promulgated by the courts in the United States to interpret the meaning of the “investment contract” concept under U.S. federal securities laws. The purpose of this Article is to verify whether we may assume that the meaning of the “investment contract security” under the CMFIBA is identical with that of the “investment contract” under U.S. federal securities laws and, as a result, the Korean regulatory authorities and the courts may rely on the precedents and experience on the meaning and interpretation of the “investment contract” under U.S. federal securities laws, for their future construction and application of the CMFIBA provision. Part Ⅱ of this article analyzes the “investment contract” concept under the U.S. federal statutes (i.e., Securities Act of 1933 and Securities Exchange Act of 1934). “Investment contract” is not statutorily defined, rather it has been the task of the courts to define the concept. I focus on the Howey test that was first declared by the U.S. Supreme Court in 1946 and thereafter has been modified and supplemented by the subsequent court decisions. Under the Howey test as revised, an “investment contract” is a contract, arrangement, or scheme whereby a person invests money in a common enterprise with the expectation of profits solely, or at least largely, from the efforts of other persons such as the promoter or some other third person. I also pay attention to the function of the Howey test as a criteria to determine whether the other types of instruments specifically listed under the federal statutes are securities. I argue that the Howey test is not a fixed criteria but has been subject to changes and it might face further changes or even an emergence of an alternative test. Part Ⅲ of this article examines particular business relationships where the U.S. courts have dealt with the definitional issue of the “investment contract”, in order to enhance the understanding on how the Howey test works in the real world. Such areas include, among others, real estate or personalty transactions with management arrangements, partnerships, franchises and distributorship, employee benefit plans, discretionary security and commodity trading accounts and internet games. In Part Ⅳ, I attempt to make comparative analysis of the CMFIBA and U.S. federal securities laws with respect to the meaning and function of the investment contract concept. Generally speaking, both the “investment contract security” under the CMFIBA and the “investment contract” under U.S. federal securities laws, as defined by the revised Howey test, consist of the same elements and, even though there exits discrepancies in the formulation of each element, are likely to resemble in their function as a criteria to determine whether a transaction should be treated as a security. Therefore, in Part V, I conclude that the Korean regulatory authorities and the courts may look to the precedents and experience of the United States legislature, judiciary and the regulatory body (SEC) with respect to the application of the “investment contract security” concept under the CMFIBA. On the other hand, however, given the significant differency in other statutory provisions of the securities laws and legal system in general, it would be necessary to modify the Howey test and to develop and promulgate our own standard to determine whether a transaction falls within the definition of the “investment contract security” for purposes of the CMFIBA.