수익증권 및 투자계약증권 유통 관련 법적 문제에 관한 소고- 조각투자 상품 관련 쟁점을 중심으로

There are positive aspects of fractional investment in that they provide investment opportunities for mass investors in real assets which were difficult to be securitized. As such move brought about an unprecedented secondary market, questions can be raised on how these products will be distributed and whether it will fall under regulations on securities trading within the Capital Markets Act. This is because beneficiary certificates and investment contract securities issued as fractional investment products were hardly traded in the secondary market. In addition, given their characteristics of severalty and atypia, it was difficult to form a trading system, nor investment contract securities were subject to Electronic Securities Act. As a prerequisite for trading, the form of security transfer can be described as follows. The rights embedded in a security is being transferred when a beneficiary certificate or investment contract security is transferred from one to another investor. In order words, for the case of a beneficiary certificate, the transfer becomes effective by issuing the certificate in accordance with the beneficiary certificate issuance trust under the Trust Act. For an investment contract security by issuing under the Immovable property investment contract, the transfer becomes effective by transferring a share of ownership of immovable property and transferring occupancy by delivering the immovable property. Recent guidelines from Financial Services Commission on the issuance and distribution of tokenized securities enabled formation of secondary market for these securities by utilizing block-chain technology. Although rights embedded in the securities are atypical, if the occurrence, change, and disappearance of the rights are recorded in the distributed ledger and can be given legal effect as a public ledger that can confirm the transaction details, it can be recognized as electronic registration under the Electronic Securities Act and the securities can be distributed based on the entry in the ledger. Hence, a secondary market established as such can be subject to regulation under the Capital Markets Act. In other words, price formation should not be hindered by information limitations or information asymmetry between the trading parties, and investor confidence must be secured in the market. In particular, the disclosure obligations of fractional investment service providers and unfair trade regulations under the Capital Markets Act. are important. Still, it is necessary for the regulations on secondary market, by considering the unique characteristics of fractional investment. Applying the same rule for disclosures in the current distribution disclosure obligations and the separation of distribution and issuance regulations seems improper. Fractional investment should be treated differently from the secondary market of conventional securities such as stocks, in that the underlying assets are diverse and atypical, and the value of the assets is affected and largely dependent on the ability of the fractional investment service providers to conduct their business. Also, given that these securities are traded through the over-the-counter market, the securities may be vulnerable to market manipulation activities, and the information on the securities can be easily spread out via SNS, etc. This implies the need for regulation on the use of undisclosed material information that profits from information gaps. Compared to conventional over-the-counter markets, the secondary market for these securities should require advanced systems to prevent unfair trade practices, along with stricter monitoring criteria to ensure compliance of market participant.