가상자산의 증권성 판단기준에 대한 연구

The Terra-Luna crash in May 2022 resulted in 280,000 victims in Korea, but the ongoing investigation on the incident is still stagnated due to the lack of clear standards for judging the security of virtual assets. Therefore, this study aims to present the standard for judging the security of virtual assets, which is the most important prerequisite for revitalizing the virtual asset market through supervision and deregulation of the market upon arrival of the post-Crypto Winter era. To achieve such aims, the implications of the latest U.S. federal court cases are summarized in addition to the examination of the Howey test, a case law theory in the U.S federal Securities Act that was used to introduce the concept of investment contract securities in the Capital Market Act, and the investment contract securities in the Korean Capital Market Act. Based on the results, a standard that allows easy determination of the securitization of virtual assets, even without familiarity with law and precedents, is proposed and applied to representative small and medium-sized virtual asset in Korea for securities judgement. By utilizing this standard, we hope to provide a rational approach in securities judgement of virtual assets and address the Korean virtual asset market through the enactment of the Digital Asset Act that considers the inherent limitations of virtual assets and the fact that many virtual assets possess characteristics of investment contract securities due to the market formation process.