투자계약증권의 판단기준에 대한 비교법적 고찰

In this paper, the judgment criteria of investment contract securities were analyzed by comparing the cases of the United States and Japan with domestic standards. Regarding the judgment factors of investment contract securities, Korea and Japan cited the judgment criteria in the US Howey case, but showed different differences in some factors. The elements of investment contracts in the United States are joint projects, investments such as money, the efforts of others, and the expectations of profits, and among them, the elements of joint projects are markedly different. In Korea, investment by one person is not considered a joint project as the term joint project is clearly specified in the Capital Markets Act, whereas in the United States, the standards of joint projects have been relaxed in various precedents since the Howey case was ruled, and in Japan, the term business operation rather than the term joint project is specified in the Financial Products Transaction Act, so investment by one person is also included in the investment contract. In this case, investment contract securities under the Capital Markets Act set stricter requirements, so even if a virtual asset is recognized as an investment contract securities in the United States or Japan, the virtual asset is not recognized as a securities in Korea. In this respect, improvement is also required as there is a possibility of confusion and damage to investors.