자본시장법과의 비교를 통해 살펴본 가상자산 불공정거래 규제 및 제도적 보완 방향

As urgency of providing safe protection for users has increased amid the rapid growth of the domestic virtual asset market, 「The Act on the Protection of Virtual Asset Users 」(hereinafter referred to as the “the Virtual Asset Act”) took effect from July 19, 2024. In anticipation of establishing a comprehensive regulatory framework for virtual assets (Phase 2 legislation), this paper aims to examine the regulations on unfair trading activities under the Virtual Asset Act in comparison with the 「Financial Investment Services and Capital Markets Act」(hereinafter referred to as the “the Capital Markets Act”), and propose more desirable directions for further refinement. Looking at the legislative examples of major countries, the EU regulates insider trading and market manipulation in TITLE VI 'Market Abuse involving Crypto-assets' of the separate, comprehensive legislation known as MiCA (The Markets in Crypto-Assets Regulation). In the United States, unlike the EU, while there is no comprehensive legislation in place, the nature of the digital asset determines the regulator responsible. The Securities and Exchange Commission(SEC) has jurisdiction over unfair trading activities for digital assets that are recognized as securities based on the Howey test. The Commodity Futures Trading Commission (CFTC) has jurisdiction over those that are recognized as commodities, leading to friction between the two regulators. In Japan, 「The Financial Instruments and Exchange Act」 prohibits market price manipulation of non-securities crypto-assets and unfair trading activities. However, there is no prohibition on insider trading as it is difficult to identify the issuer and 'undisclosed material facts' in advance. Similar to the rules of the Capital Markets Act, the Virtual Asset Act stipulates that the use of material nonpublic information, market price manipulation, and unfair trading are unfair trade practices. As additional regulations for virtual asset service providers, it also prohibits ‘transactions of virtual assets issued by itself or by a person in a special relationship prescribed by Presidential Decree’, prohibits ‘discretionary blocking of deposits or withdrawals’, and establishes the duty to monitor abnormal transactions. Regarding the use of material non-public information, the ambiguous definition of those who qualify as actors (“persons as determined by Presidential Decree(Article 10(1)7)," needs to allow for flexible operation considering the decentralized nature of virtual assets; details could be delegated to the Financial Services Commission through a public notice. Furthermore, the broader interpretation of inside information in the Virtual Asset act compared to the Capital Markets Act, while intended for comprehensive investor protection given the characteristics of virtual assets, requires clarification through guidelines defining “relevance to virtual assets.” Concerning market manipulation, given the potential introduction of virtual asset derivative transactions in conjunction with Phase 2 legislation, the inclusion of connected market manipulation regulations in the Virtual Asset act is necessary. Considering the increasing speed and breadth of unfair trading practices, the inclusion of fraudulent acts involving deception, spreading rumors, coercion or threats, and market disturbance regulations—as seen in the Capital Markets Act—within the Virtual Asset act is also advisable to prevent future controversy. In addition, the ban on self-issued virtual asset transactions should be maintained in consideration of financial market spillovers, and the method of calculating the damages caused by ‘discretionary blocking of deposits or withdrawals’ and the level of abnormal transaction monitoring obligations should be further refined through continuous consultation with relevant parties. Also, in preparation for the emergence of new unfair transactions, it is necessary to clearly define the scope of the virtual asset market under Article 2(4) of the Virtual Asset Act and the scope of the obligated virtual asset service providers(Articles 10 to 12) to include Defi transactions. It is necessary to carefully decide whether to mandate permissioned blockchains, in line with whether to allow the issuance of stablecoins on permissioned blockchains in the phase 2 legislation, by setting policy priorities between ‘fostering innovative services utilizing blockchain technology' and ‘protecting users and establishing a sound virtual asset market order'. This decision should also take into account global standard-setting trends. In the meantime, timely prevention of user damage from unfair virtual asset trading has been challenging due to the complexity and diversity of institutional responses to the rapidly changing virtual asset market. Therefore, proactively incorporating regulations on unfair trading practices, similar to those under the Capital Markets Act, into the Virtual Asset Act is considered a policy-efficient measure.