가상자산 현물 상장지수집합투자기구(ETF) 도입을 위한 법적 쟁점과 과제 ―비트코인 현물 ETF를 중심으로―

The U.S. Securities and Exchange Commission (SEC), which had long been negative towards the listing of Bitcoin spot Exchange-Traded Funds (ETFs), recently approved the exchange listing of such products applied for by 11 asset managers, including Grayscale. Following this approval, the launch and sale of these products began, and some domestic securities firms were preparing to broker transactions for them. However, the financial authorities banned all activities related to the brokerage of these overseas-approved Bitcoin spot ETFs, citing potential violations of the Capital Markets Act. Nevertheless, it is deemed that Bitcoin can be included as an underlying asset under “risks attributable to natural, environmental, economic phenomena, etc., for which prices, interest rates, indices, or units can be calculated or evaluated by reasonable and appropriate methods”. Moreover, virtual assets, including Bitcoin, are defined as having “property value” in laws such as the “Act on the Protection of Users of Virtual Assets” and the “Act on Reporting and Using Specified Financial Transaction Information”, as well as in various precedents. Meanwhile, as ETFs generally take the form of investment trusts under the Capital Markets Act, this provides grounds for trustees to hold such assets as an exception to the trust. Therefore, it is considered feasible for the financial authorities to approve Bitcoin spot ETFs, which are investment trust products that track indices based on overseas Bitcoin spot prices, within the current legal framework. However, due to the ongoing ambiguity in the interpretation of underlying assets, legislation is necessary to explicitly include virtual assets as underlying assets within the Capital Markets Act.