가상자산의 증권성에 관한 小考 - 테라·루나 사건을 중심으로 -

The Virtual Asset User Protection Act is set to come into effect in South Korea starting July 19, 2024. This Act will regulate insider trading, market price manipulation, and unfair trading practices related to virtual assets. However, until the Act becomes effective, punishing unfair trading practices remains challenging unless a virtual asset is considered a security. Analyzing U.S. cases suggests that there’s a high possibility for the Terra and Luna to be considered as securities. The difference between the U.S. Howey Test and Article 4(6) of the Capital Market Act on investment contract securities lies in the Howey Test’s requirement of a ‘reasonable expectation of profits’. Article 4(6) of the Capital Market Act stipulates it as “a contractual right to receive profits or losses”. While the Korean Capital Market Act adopts comprehensive approaches, it does not permit interpretations beyond explicit provisions. When interpreting “a contractual right to receive profits or losses” in the definition of investment contract securities under Article 4(6), it is crucial to address the questions, whether only profit distribution-type virtual assets should be included, whether capital gains realization-type virtual assets are also incorporated, and whether profit claims can be recognized based on the white paper published by the virtual asset issuer. Since Article 4(6) of the Capital Market Act stipulates “to receive profits or losses”, it is argued that it should include not only profit distribution-type virtual assets but also capital appreciation realization-type virtual assets. It is also argued that contractual claims should be recognized based on the white paper. If these broader interpretations are not adopted, there would scarcely be any virtual asset considered as a security in South Korea.