미국의 디지털자산 최근 규제 현황 및 시사점 : 투자계약과 관련한 미국 하급심 법원의 판단 및 FIT21 법안을 중심으로

Unlike the EU, which has enacted comprehensive legislation on virtual assets, and Japan, which has introduced a dual regulatory system through amendments to the Financial Instruments and Exchange Act and the Payment Services Act, the United States has yet to establish a clear regulatory framework for virtual assets. The stance demonstrated by President Biden’s “Executive Order on Ensuring Responsible Development of Digital Assets” and the U.S. Securities and Exchange Commission (SEC) suggests that the United States is taking a cautious and strict approach to regulating virtual assets. However, the SEC’s efforts to incorporate most virtual assets into securities regulation and impose active sanctions have faced opposition from virtual asset industry players such as Ripple, shifting the determination of whether virtual assets qualify as securities to the courts. Some courts have even questioned the validity of such regulations. In an effort to resolve regulatory uncertainty and foster the growth of the virtual asset industry, the “Financial Innovation and Technology for the 21st Century Act” (FIT21), regarded as a pro-virtual asset bill, passed the U.S. House of Representatives on May 22, 2024. Furthermore, Donald Trump, who pledged to strategically stockpile Bitcoin held by the government, ease regulations related to virtual assets, and position the United States as the capital of virtual assets, was elected President. This indicates a shift in the U.S. perspective on virtual asset regulation. Given the U.S.'s historically strict and risk-averse regulatory stance toward the virtual asset industry, these recent developments in U.S. virtual asset regulation are likely to have significant implications for South Korea. This article examines recent changes in U.S. regulatory trends, focusing on securities determinations, and analyzes administrative, judicial, and legislative aspects related to SEC regulation. It reviews the Biden administration’s executive order and other proactive regulatory measures regarding virtual assets, as well as the lower court decisions arising from lawsuits such as the Ripple case. Ultimately, the concept of an investment contract in the U.S. cannot be judged unilaterally. Notably, courts seem to share a common position that virtual assets themselves are not securities. Consequently, judgments on virtual assets must consider various factors surrounding the sale and trading of such assets—the so-called “ecosystem”—and must be made on a case-by-case basis, accounting for individual assets and activities. As an alternative to this regulatory ambiguity, the FIT21 Act was proposed and passed by the House of Representatives. The Act seeks to introduce regulations more aligned with the unique characteristics of digital assets by removing the investment contract concept from the definition of securities in the digital asset domain and adopting a so-called decentralization test in place of the Howey Test. This article, which examines the current regulatory situation in the United States, assumes that virtual assets are not financial investment products under the Capital Market Act, and in order to fill the regulatory gap resulting from this, the Virtual Asset User Protection Act was enacted and implemented, and I hope that it will be of some help in establishing virtual asset regulations in Korea, which is attempting to establish a complete regulatory system through the Virtual Asset Basic Act.