미국연방증권법상 증권의 정의에 관한 연구

This article deals with the definition of security under U.S. federal securities laws focusing on the concept of investment contract-concept derived from the Howey test under U.S. federal securities laws. The judicial definition of security-developed primarily from interpretation of the statutory phrase investment contract. The courts have used various tests for determining whether a security-exists. Since stock is one of the enumerated instruments in the definition of security, there is a strong presumption that stock is a security However, Supreme Court held that stock in residential cooperative was not a security on the ground that, as a matter of the economic realities, the stock represented an interest in real estate rather than a business venture. When notes have investment attributes, the courts have found securities to exist. However, the courts have been willing to find a commercial rather than investment context, especially when bank financing is involved. The Supreme Court applied the family resemblance test in holding that certain demand notes were securities. With the lead of the Supreme Court, federal and state courts have strived to arrive at a workable definition and have formulated various tests and approaches. The courts have been mindful of the fact that the bottom-line question is whether the particular investment or instrument involved is one that needs or demands the investor protection of the securities laws. The basic test for investment contract laid down by the Supreme Court in Howey is whether the person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party. Supplementing the Howey test, many state courts and a few federal courts have employed the risk capital test as an alternative interpretation. Generally a conveyance of real estate will not be subject to the securities laws. However, when a transaction has the investment type indicia normally associated with investment contracts, a security may be found to exist. Since a general partnership interest and most joint ventures will ordinarily carry with them a substantial say in the management of the enterprise, they will not fall under the securities laws purview unless there is substantial reliance on the efforts of others. In defining financial products, the Capital Market and Financial Investment Services Act (hereinafter, CMFISA), contrary to the positive list system under Securities and Exchange Act, introduces a comprehensive system. The definition of security under CMFISA includes investment contract security derived from the Howey test under U.S. federal securities laws. The various tests employed by the SEC and the U.S. courts for determining whether an instrument constitutes a security are likely to have a great influence on interpretation of the definition of the security under CMFISA by the Korean regulatory authorities and the courts.