토큰증권(ST)에 관한 법제와 사례연구

This paper examines the various issues for legislation on token securities. After crypto assets were allowed in Korea, it continues to grow explosively. However, the Act focusing on investor protection for crypto assets has just entered into enforce on July 19, 2024, and a revision to the Act related to the securities token is currently pending in the Korean National Assembly. The United States issues securities token as included securities Under Securities Act of 1933, and even includes most of its crypto assets as securities. Japan differs from the Act applied to crypto assets and securities Token. Securities token are viewed as a type of securities in the Financial Products Transaction Act. We are in the same direction as Japanʼs legislative regulation. Although the regulatory laws of crypto assets and securities token is different, the concept of both is not clear, and in order to avoid strict regulations in practice, the Act could be selected by issuer. As a way to solve this problem, there should be no regulatory difference, at least in terms of investor protection. In the case of the United States, even non-securities tokens should impose disclosure obligations to protect investors. Second, the Howey test that was first declared by the U.S. Supreme Court in 1946 is used to evaluate whether a DAO token is a security. Howey test establishes four, ① an investment money, ② in a common enterprise, ③ with an expectation of profits, ④ derived from the efforts of others. But Koreaʼs investment contract securities under the Capital Market and Financial Investment Business Act of Korea differ from the United States, which requires the expectation of profits in that they require the attribution of profits and losses. Moreover, the Capital Market and Financial Investment Business Act should also be amended so that Koreaʼs investment contract securities are regulated by the secondary market. Third, it is necessary to reorganize the token securities secondary market, for example, PTS, or the over the counter market. Fourth, since the distributed ledger has little risk of double transfer, the law of possession and transfer of rights on token securities can be recognized as occupying and estimating rights on the distributed ledger, and there is also a function of disclosure on the distributed ledger. Finally, token securities deposits adopt a centralized type, but in the future, the door should be expanded to recognize those who keep private keys as deposits.