독일 전자증권법을 통해 본 한국 토큰증권 법제화에서의 시사점

This paper was written with the aim of gaining insights for the domestic legalization process of token securities by examining Germany's Electronic Securities Act and distribution regulatory framework, which already incorporates token securities as electronic securities and implements them. This is particularly relevant at the current juncture where discussions on the legalization of token securities (ST) in Korea are actively underway, and draft amendments to the Electronic Securities Act and Capital Markets Act containing related discussions are pending in the National Assembly. The issuance and distribution platforms for fractional investments, previously issued and distributed through the regulatory sandbox system, have now been incorporated into the legal regulatory framework through amendments to the Capital Markets Act. The direction for the legal framework of token securities in Korea can be summarized as follows: The distribution of token securities is summarized as seeking to incorporate existing fractional investment distribution platforms into the Capital Markets Act by establishing a new authorized entity under the Capital Markets Act capable of issuing or distributing investment contract securities and profit participation certificates. Germany enacted its Electronic Securities Act in December 2020, which regulates crypto securities similar to our token securities, and implemented it following a resolution by the Federal Parliament in May 2021. Germany's Electronic Securities Act accommodates crypto securities registered in a distributed ledger-based crypto securities registry, alongside centrally registered securities in a central registry, as forms of electronic securities issuance. It allows issuers to choose between registration in the central electronic registry or the crypto securities registry. Furthermore, it permits issuer account management institutions for crypto securities, enabling direct registration and management without securities firm intermediaries. The Korean Electronic Securities Act's incorporation of token securities as electronic securities and its allowance for issuer management institutions were significantly influenced by the German Electronic Securities Act. However, the German Electronic Securities Act dedicates a separate chapter to regulate this, considering the distinct characteristics of distributed ledgers compared to existing electronic registries. It also distinguishes between joint registration and individual registration for securities registration. When legislating token securities domestically, considering the clear differences between distributed ledgers and existing electronic registration account books, it is worth considering regulating them separately by chapter—distinguishing between electronic securities recorded in existing electronic registration account books and token securities recorded in distributed ledgers—and separately regulating provisions based on the form of securities registration. Meanwhile, regarding the circulation of token securities, the European Union has been implementing a DLT Pilot Regime since March 23, 2023, to promote the establishment of trading infrastructure based on distributed ledger technology (DLT). In Germany, 365X, a DLT-MTF company licensed under relevant regulations, issued electronic securities under the German Electronic Securities Act and executed trades through the DLT-MTF, bypassing the existing securities settlement system. Beyond establishing new licensing units for fractional investment issuance and distribution under the Capital Markets Act, there is a need to simultaneously pursue the development of DLT-based infrastructure domestically by utilizing regulatory sandboxes, referencing the DLT Pilot Regime implemented by the European Union for building diverse DLT-based infrastructure.