암호자산 규제법제 정비를 위한 검토 - 해외 규제사례를 기초로

From June 2020 to November 8, 2021, the number of bills proposed to the 21st National Assembly regarding crypto-assets regulation is totally 17. These crypto-asset-related bills are largely divided into (i) enacting a new law focusing on crypto-assets and (ii) amending the current financial law. The latter is (i) amending the Electronic Financial Transactions Act and (ii) amendments to the Act on Reporting and Use of Certain Financial Transaction Information and (iii) amendments to the Capital Market Act. In foreign countries, regulatory approach for crypto-assets, the content of regulations and the level of discipline are not the same. However, what is common is that the issuance regulation, distribution regulation, and unfair transaction regulation are being comprehensively equipped to protect investors and consumers. In United States, from the standpoint of investor protection, federal Securities Act, which regulates disclosures and unfair transaction based on information asymmetry for the investor, is applied to the crypto assets. Derivatives of crypto assets is regulated as a commodity under the Commodity Exchange Act. EU, which is designing a separate regulatory system, is trying to protect users by establishing a regulatory system similar to that of the capital market for crypto assets, through the Markets in crypto-assets regulation(MiCA). It is draft that sets out a regime to regulate issuers of crypto-asset and providers of crypto-asset services. MiCA reiterates that crypto-assets that qualify as financial instruments are already subject to the Markets in Financial Instruments Directive (MiFID). Japan also stipulates cryptographic assets as one of the types of securities to which the Financial Instruments and Exchange Act applies, and comprehensively regulates issuance, related businesses, and regulations on unfair transaction practices. The fact that it is fundamentally difficult to understand the technology, that these technologies are approaching general consumers and investors in the form of conventional finance, and the domestic reality that the use rate of the KRW market is high in Korea, and the proportion of crypto assets listed only in Korea is very high. Considering these factors, the global regulatory approach that prepares a comprehensive regulatory system in relation to cryptographic assets provides meaningful implications. On the other hand, for concerns that comprehensive legal system related to crypto-assets may be an obstacle to the development of the crypto-asset industry, SEC’s guidelines for judging securities properties or the use of No Action Letters, or the differentiated reqirements according to the tokens type like MiCA could be considered. It will be possible to solve the problem by finding flexible application methods.