가상화폐의 자본시장법상 법적성격에 관한 고찰 - SEC v. Ripple Labs, INC.를 중심으로

One of the current biggest issues related to regulation of virtual currency would be SEC charging Ripple Labs Inc. for unregistered securities offering of XRP, its new virtual currency. Even before this incident, there had been cases in which cryptocurrency investors chose to file suit against virtual currency issuers or SEC sanctioned virtual currency issuers. Until now, the standard for judging the security of cryptocurrency had been the Howey Test under the Securities Act of 1933. However, questions on whether the Howey Test – which had been established in the era of the Great Depression – is appropriate for modern cryptocurrency are arising. Considering the recent Framework for ‘Investment Contract’ Analysis of Digital Assets (SEC guideline) and the remarks made by high-level SEC officials, even cryptocurrencies acknowledged to be securities may be denied their status as securities if distributed ledger networks and tokens have already been developed and in operation.Unlike other cryptocurrencies involved in previous SEC sanctions or rulings, XRP has a significant impact in the market and ranks as one of the top 10 cryptocurrencies in terms of market share. Whether the US court acknowledges XRP as a security based on the existing Howey Test and whether XRP would be denied as a security would have a profound impact on the virtual currency ecosystem and new standards for regulating virtual currencies as securities under the Financial Investment Services and Capital Markets Act.