스타트업 창업회사의 선주문 방식을 통한 자금조달의 문제점에 관한 법적 연구

Startup companies can attract capital through equity crowdfunding as well as from venture capital. Venture capital usually asks startups for proving the probability of success of their business model. On the other hand, crowdfunding makes it easier for startups to raise capital than traditional one. Lodging product design plan to crowdfunding platform may substitute for the proving of the probability of business success. The creative product design may attract both of the investors and consumers. To raise capital, therefore, company may use pre-order as well as equity crowdfunding. There is no regulation or restriction on pre-order. It may be easier for companies' to attract capital through pre-order than equity crowd- funding. Therefore, pre-order will be used no less than equity crowdfunding in the near future. The problem is that some startups keep postponing product launching and keep pretending to make product. Nevertheless, they also keep soliciting pre-order offers from consumers. The quasi-straups respond consumers' refund request from new money paid by new pre-orderers. Those companies misuse pre-order as a way to run quasi-ponzi scheme, needless to say that they do not differ much from borrowing consumers' money without paying interests at all. In spite of such an abusing of pre-order, current laws are not able to fully cover such an quasi-ponzi scheme. "Korean Crowdfunding Act" does not provide any legal protections for pre-order consumers at all. The law only designed to provide investor protection. Korean "Act on the Consumer Protection in Electronic Commerce, ETC" §15(1) allows consumer and seller of pre-order can freely decide a specific delivery date and conditions without any intervene of the Act. "Korean Contract Law" also is not able to cover this problem. Web images inducing pre-order will not constitute an offer for sale of contract law, but it is a soliciting an offer from consumers. Unlike most of consumers' recognition, credit card clearance letter or any money transfer confirmation massage on the web is not regarded as an acceptance of the offer. Without startups' obvious expression of allowance, the legal basis of consumers' refund claim is not clear: whether it is 'cancellation of contract' or 'claim for return of unjust enrichment.' The latter will impose on startups the liability to pay interests. Contract to deliver a product that has not yet been manufactured before is not well recognized in current contract law as well. Korean Securities Act("Financial Investment Services and Capital Markets Act") is not applicable pre-order case because pre-order is not an 'investment contract' of Howey case. Many startups using standardized terms, so the author suggests that some provisions of "Korean Act on the Regulation of Terms and Conditions" should be revised so that the law can prohibit startups' from receiving consumers' offers even after the company fail to invent product at projected date as well as company should start to pay interest for pre-orderers from the expected release date. The author also suggest how to Korean FTC and Korean SEC deal with startups' off shore solicit offers. The author emphasizes on quasi-startups' pre-order regulations are crucial for the success of overall crowdfundings system. When consumers start to think that most of startups' innovatory products are too good to be true or when many consumers start to realize that crowdfunding platforms are full of pre-order stores instead of soliciting equity investment, regulatory bodies should see to it that they may not miss regulatory golden time.