STO 관련 해외 입법례 및 정부 규제 방향

This paper aims to study virtual assets-especially a security token offering-on regulations and government policies of the United States and Japan. If one is considering an Tokens or Coins Offering or otherwise engaging in the offer or sale, one need to consider whether the U.S. federal securities law apply. The term “security” includes an investment contract“. The so-called ”Howey test“ applies to any contract, scheme, or transaction, regardless of whether it has any of the characteristics of typical securities. The broad Howey test which has become commomplace for token and coin issuers, still defines a security as any contract, transaction, or scheme whereby (a) a investment of money, (b) a common enterprise, © reasonable expectation of profits derived from efforts of others. Recently, the Securities and Exchange Commission claims that all tokens, except for the payment token as such Bitcoin, are included in securities. By the way, according to SEC commissioner Hester Peirce’s token safe harbor proposal, an initial team will have three years to establish their network as functional or decentralized in order to receive an exemption from federal securities registration. It is sort of regulatory sandbox and aim at development of a mature network. In Japan, cryptocurrencies is introduced legally through the revision of the Payment Service Act in 2016. And then, in the 2019 revised Financial Instruments and Exchange Act, tokens is legislated as the electronic recording securities. Therefore, in Japan, tokens and cryptocurrencies are treated differently legally. This is the different from the U.S. In Korea, because the regulation on virtual assets is insufficient, investors are suffering serious damage. So, we should decide whether the coin is a security or not, how to protect investor at the issuing and translation markets.