조각투자의 거래구조와 투자자 보호

Fractional investment is popular now. It is generally known as investing in a share of ownership right for assets such as real estate, paintings, etc. or right to claim for profit generated from the assets. The fractional investment takes various structures including where an investor acquires (i) a right to claim for profit generated from assets (the “structure of right to claim”), (ii) an interest in the ownership right of assets (the “structure of ownership interest”) and (iii) a beneficial interest in the trusted assets (the “structure of beneficial interest”). The investors have different legal status in above structures. From the private law perspective, the status of the investors in the structure of right to claim is relatively vulnerable, because they can face to the credit risk of the business operator of the fractional investment platform. By comparison, the investors in the structure of ownership interest are the co-owners of the assets. Thus, they have the remedies of an owner under the Civil Code and the right of repossession under the Debtor Rehabilitation and Bankruptcy Law in case of bankruptcy of the business operator. In the structure of beneficial interest, the investors are the beneficiaries of a trust. Under the Trust Law, an beneficiary has various rights to supervise a trustee and to participate in trust affairs, in addition to the right to claim for profits from the trust assets. Although the investors in the structure of right to claim are relatively vulnerable from the perspective of private law, the possibility to be protected by the regulatory law including the Financial Investment Services and Capital Markets Act (the “FSCMA”) seems be relatively high. Recently, the Financial Services Commission (the “FSC”) decided that the claim to participate in music royalty operated by Musicow is an investment contract security, which is provided as one of the securities under the FSCMA. The FSC also introduced a guideline relating to new type securities including fractional investment (the “Guideline”) with the decision. According to the Guideline, when the investors directly have the ownership rights or are able to individually make use of, make profit from or get rid of the assets, there is a relatively low probability of being considered as a security. It also mentions that the ownership rights of the investors should be proved publicly in order not to be regulated by the FSCMA. On the other hand, when the investors have right to claim for profit generated from the assets, it is possible for the FSCMA to apply such transactions. However, it should be noted that the FSCMA can apply to the structure of ownership interest also. The concept of securities under the FSCMA is not directly related to the ownership of certain assets. Many business operators of the structure of ownership interest provide similar services to those of the structure of right to claim. The investors can suffer damages from the business operators’ services if they will suspend the business abruptly, provide incorrect information, etc., even the investors have ownership in the assets. Therefore, it will be desirable to regulate the structure of ownership interest by interpreting the investment contract securities broadly in order to protect the investors. It is a problem that the concept of investor contract securities are broad and vague, and there are no court case for the same yet. In this regard, the trust becomes important to protect investor’s private rights and eliminate uncertainty in regulatory laws. The trust structure has several other advantages. From the private law perspective, the beneficial right of a trust is stronger than a claim. It includes various rights to supervise a trustee and participate the trust affairs. In addition, the trust’s bankruptcy remoteness can protect investors from the credit risk of the business operator. If the trustee issues beneficiary certificates, the investor can transfer its beneficial interest efficiently. The beneficial certificate is one of the securities under the FSCMA. Thus, FSCMA will apply to a trust where the trust company issues beneficial certificate. Because the FSCMA only permits for a trust company of a money trust to issue beneficiary certificates, the trust company of the fractional investment transactions cannot issue beneficiary certificates. To solve such problem, the fractional investment business operators use currently the designation of innovation financial service. However, such solution is temporary. The FSCMA should be amended to permit for a trust company to issue beneficiary certificates in other type of trust in order to facilitate the use of trust in fractional investment.