가상통화 관련 파생상품거래 등에 대한 미국 연방 상품거래법상 쟁점에 관한 고찰-연방상품규제당국(CFTC)의 접근방법을 중심으로-

Since the launch of the Bitcoin, the first virtual currency based upon blockchain or distributed ledger technology in 2009, numerous other virtual currencies have emerged and the novel technologies have evolved rapidly. The functions and uses of virtual currencies(“VCs”) are no longer confined to those as a medium of exchange or payment. Rather characteristics of VCs as an investment have become of greater importance. VCs are actively traded on a number of online platforms around the world and the number of retail investors seeking investment opportunities in these markets have increased dramatically over the past several years. In late 2017, CME and Cboe Futures Exchange have listed Bitcoin futures derivatives and became the world’s first federally regulated Bitcoin futures market. As the rise of the public interests in VCs for investments in the derivatives markets as well as in the spot markets, fraudulent activities have increased in these fields and in turn the demands for regulatory responses have heightened. In this Article, the author examines how the regulators in the United States have responded to those challenges, especially focusing on the approaches taken by the Commodity Futures Trading Commission(“CFTC”) under the U.S. Commodity Exchange Act(“CEA”). In Part II, this Article examines the regulatory framework regarding VCs under the CEA and the basic approaches taken by the CFTC. US law does not provide for direct comprehensive system to regulate VCs. Among other regulators at the federal or state levels(including state banking authorities, IRS, FinCEN and the SEC), the CFTC has, depending upon settings, an exclusive or concurrent regulatory power over VCs. In the Matter of Coinflip, Inc. in 2015 the CFTC first found that VCs are properly defined as commodities under the CEA. Since then, the CFTC has treated not only Bitcoin but also any VCs collectively as commodities for purposes of the CEA and has applied the long standing principles of the CEA and regulations thereunder to the VCs. The CFTC has both regulatory and enforcement jurisdiction under the CEA over derivatives on VCs traded in the U.S. market and conducts comprehensive regulatory oversight, including imposing registration requirements, standard of conduct, capital requirements and platform and system safeguards, as well as enforcement power. However, the CFTC does not have regulatory jurisdiction under the CEA over markets or platforms conducting cash or spot transactions in VCs, but does have enforcement jurisdiction thereover if there is fraud or manipulation involving VCs traded in interstate commerce. In Part III, the author goes through various enforcement actions that the CFTC has taken since the Coinflip case in 2015. Among others, she looks through a number of civil enforcement actions against Ponzi schemes or fraudulent schemes involving VCs and a few settled charges for registration violations on derivatives markets or futures commission merchants with no anti-fraud issue. In Part IV, the author points out that the CFTC has endeavored to accommodate the derivative transactions involving VCs within the regulated markets through the listing of futures contracts on VCs on the national exchanges. It also has provided for the guidelines for the future listing of new products, incorporating the comments from the futures industry. It has requested for public input on VCs mechanics and markets in preparation for the introduction of derivative contracts on other VCs beyond Bitcoin, specifically Ether. In Part V. the author highly appreciates the CFTC’s efforts to keep abreast of the VCs developments to forster technology revolution while enhancing market integrity and investor protection through thorough enforcements. She will keep a close eye on whether the CFTC will stick to its current approaches and how the federal courts and the Congress will respond to the CFTC’s actions at firsthand and, ultimately, to the technology innovation on VCs.