의도적 분할발행의 규제―미국의 Integration Doctrine과 자본시장법의 비교―

In 2017, a securities firm issued asset-backed securities without filing registration by establishing 15 SPCs for one single asset, each of which issued securities in amount exempted from registration. After that scandalous attempt to circumvent the registration requirement, the Capital Markets and Financial Institutions Act of Korea was amended to allow integration of separate offerings to enforce registration requirement. The standards to be used for integration are molded after the five-factor test as developed in the SEC’s integration doctrine. The five-factor test, however, has been criticized for being ambiguous and causing uncertainty. In January 2020, SEC proposed to abandon the five-factor test and introduce a new integration framework. According to the new integration framework, offers and sales will not be integrated if, based on the particular facts and circumstances, the issuer can establish that each offering either complies with the registration requirements of the Securities Act, or that an exemption from registration is available for the particular offering. It also provides for simplified safe harbor rules. Comparing to SEC’s proposal, Korea’s integration doctrine adopts ambiguous standards without providing safe harbor provisions, thus increases uncertainty and legal risk to the market players.