ICO(Initial Coin Offering)에 대한 미국 연방증권법상 쟁점에 관한 고찰 - 연방증권규제당국(SEC)의 접근방법을 중심으로 -

초록

In recent years, we have seen emerging digital asset technologies including blockchain and other distributed ledger technologies and, taking advantage of the new technology, initial coin offering(ICO) markets have grown rapidly. While the number and volume of the new products benefiting from these technologies increase explosively, the legal uncertainties weigh every aspect of the existing laws and legal community is confronted with urgent problems to keep step with the developments. Facing the proliferation of fraudulent activities, late last year, Korean Government has announced that it would prohibit ICO completely in whatever form without any legislation or official guidelines for application of the current securities law(so-called Capital Market Act). In this Article, the author analyzes the legal issues involving the ICOs under the federal securities laws of the United States which share the fundamental framework for regulating the securities markets with the Capital Market Act of Korea. Given the scarcity of the legal precedents in this new space, she focuses on the approaches taken by the Securities and Exchange Commission of the United States(SEC). In Part II, this Article examines the Report of Investigation issued by the SEC on July 25, 2017 regarding the offer and sale of tokens by The DAO(the “DAO Report”), in which applying the Howey test to the tokens, the SEC determined that the DAO tokens constituted an investment contract and thus a security for purposes of the federal securities laws. In the DAO Report, the SEC applied the long standing securities law principles to the ICO context with respect to the public offering registration requirements and the national securities exchange registration requirements. The SEC emphasized that an ICO may involve a security depending upon the facts and circumstances including the economic realities of the transaction, regardless whether the issuing entity is a traditional company or a decentralized autonomous organization, regardless whether the tokens are purchased using a legal tender or virtual currencies, regardless whether they are distributed in a certificated form or through distributed ledger technology. Even though the DAO Report is not a legally binding law or regulation but an investigative report on a specific case, it practically works as a guideline for general application to the subsequent ICO cases that the SEC has dealt with. In Part III, the author goes through various enforcement actions that the SEC has taken since its publication of the DAO Report. She looks through (i) seven ICO scam or fraudulent schemes involving unregistered ICOs; (ii) three settled charges solely for ICO securities registration violations with no anti-fraud issue; (iii) the SEC’s first case charging unregistered broker-dealer for selling digital tokens during ICOs and also in secondary trading, after the DAO Report; (iv) the SEC’s first enforcement action based on findings that a digital token trading platform operated as an unregistered securities exchange; and (v) SEC’s first-ever enforcement action finding an investment company registration violation by a hedge fund manager based on its investments in digital assets. In Part IV, the author points out that the SEC has exercised the jurisdiction over ICOs applying the fundamental principles of the federal securities laws rather than introducing new legislation or adopting formal guidance in this area, in order to strengthen the capital market and to protect the investors in the United States. Since its publication of the DAO Report, a de facto guideline for ICOs, the SEC has taken enforcement actions actively and expanded the scope for such actions. However, the author will keep a close eye on whether the SEC will stick to its current approaches and how the federal courts will respond to the SEC’s actions.

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