대체코인에 대한 증권성 판단 - 미국 법원의 리플 사건과 테라폼 사건 판단을 중심으로 -

In June 2024, Terraform Labs and Dohyung Kwon agreed with the U.S. Securities and Exchange Commission to pay a civil fine for securities fraud charges, and bankruptcy proceedings have been underway in U.S. courts since September 2024. In August 2024, a U.S. federal court decided to impose a civil penalty on Ripple's sale of unregistered securities. This is because the U.S. court ruled in 2023 that alternative coins issued by Ripple and Terraform were securities. In July 2023, the U.S. federal court made conflicting securities judgments on an alternative coin issued by Ripple and alternative coins issued by Terraform. Ripple Coin XRP is an alternative coin used for international remittances and payments. In December 2020, the SEC sued Ripple and others as defendants in federal court for unregistered securities solicitation and issuance, and the court ruled on July 13, 2023, that institutional sales were recognized as securities and market sales were denied securities. The court applied the Howey test to determine the securities of XRP and determined that market sales meet the prongs of the Howey test, including investment of money, common enterprise, and expectation of profit from the efforts of others, while market sales meet the prongs of investment of money and common enterprise, but the prongs of expectation of profit from the efforts of others are difficult to meet which appears that it may be criticized for failing to systematically apply the test. On the other hand, on July 31, 2023, the same federal court ruled on the security nature of the alternative coins (5 types) issued by Terraform. The Terraform ruling can be evaluated as positive in terms of investor protection in that the U.S. court actively judged its securities nature, but it did not sufficiently apply the prongs for common enterprise and the expectation of profit from the efforts of others in some alternative coins issued by Terraform. Accordingly, it is deemed necessary to systematically establish standards for judging the security properties of virtual assets and apply them consistently. In addition, the U.S. Department of Justice's judgment on the security nature of alternative coins provides legal stability and prediction by establishing a device to reduce investment risks in alternative coins in a situation where interest in the security nature of virtual assets is increasing and related activities or actions are taking place in Korea. In order to improve the possibilities, and to ensure healthy development of the virtual asset market and industry and investor protection, we should reorganize the Capital Markets Act and the virtual asset legal system with a regulatory philosophy such as ‘economic realities test’ and ‘technology neutrality principle’. the Efforts should be made to institutionalize a sound virtual asset market through the establishment of accredited infrastructure institutions such as publicly authorized virtual asset exchange.