ICO(Initial Coin Offering) 토큰은 자본시장법상 증권인가?―비정형적 디지털 자산에 대한 증권법리와 원칙중심 적극 규제의 필요성―

Investment contract of Howey has extended its flexible interpretative power through Glenn, Forman, Silver Hills, and Hinman(2018). The flexibility of investment contract embraces the atypicality of ICO and contributes to enhance the efficiency and investor protection in security market. The investment contract security in Korean Capital Market Act accommodates the definition and purposes of the investment contract of Howey, therefore, it would be reasonable and necessary to accommodate Glenn, Forman, Silver Hills, and Hinman tests. Based-on these tests, the ICO tokens in Korea could be adjudged as securities. The economic reality of the tokens is an investment for profit rather than a functionality for consumption. Even though Korean Capital Market Act accomodates the concept of Howey’s investment contract, it limits the purview of the concept. As a result, ICO tokens may not be securities under the Act. In order to better protect investors, the limitation should be resolved by way of introducing principle-based regulation so that the investment contract security should have an import as a lion’s share rather than fox’s share in the definition of security of Korean Capital Market Act. The investment contract needs the principle-based approach to embrace the atypicality of ICO tokens.