스테이블코인의 안정화 메카니즘에 관한 법규제적 관점에서의 고찰

초록

In order to overcome extreme price volatility of many virtual currencies including Bitcoin(BTC), so-called “stablecoins” have emerged since 2014. The term ‘stablecoin’, even though not a legally defined one, commonly refers to a type of virtual assets designed to maintain a ‘stable’ value relative to some reference asset or basket of assets including fiat currencies. Every year the market capitalization and trading volume of stablecoins increase sharply, especially since mid-2020. Currently large stablecoins such as Tether(USDT) have become a means of payment to facilitate trading in and out of other virtual assets. Furthermore when Facebook(recently renamed as Meta Platforms) unveiled a project on its own stablecoin “Libra(later rebranded as Diem)” in 2019, governments, central banks and regulators have immediately raised a range of concerns related to the potential risks on the financial system, monetary policy, concentration of economic power, anti-competitive effects and illicit finance, based upon the expectation that Libra has the potential to be used widely across the border as a means of payment by households and businesses after launch far beyond the virtual assets market, and have sought regulatory frameworks to address those concerns on stablecoins. This Article does not cover all those policy-level concerns on stablecoins, instead it sticks to the question of whether the value of stablecoins is really or necessarily ‘stable’ as claimed from the regulatory point of view. In Part II, this Article examines the common attributes of the stabilization mechanism adopted by large stablecoins. As there is no legislation that directly regulates stablecoins with respect to their stability, there exists no regulatory system that assures the stability of stablecoins. Accordingly, it absolutely depends on each coin’s design and actual execution thereof whether the value of such coin will be stable as claimed or not. The specifics of one stablecoin would differ from another stablecoin depending upon its own coin design and contractual structures. However the author identifies the existence of a stabilization mechanism as an essential characteristic that distinguishes stablecoins from other types of virtual assets. Even though there is no uniform stabilization mechanism, many stablecoins offer a promise or expectation that the coin can be redeemed at par upon request and advertise that these coins are being supported or backed by a ‘reserve assets.’ The success or failure of a stablecoin will depend on holders’ confidence in the stablecoin issuer including the issuer’s ability to maintain a stable value and facilitate redemption structure through the prudent management of reserve assets. Stablecoin holders rights can also differ in the nature of the claim, whether a claim on the issuer or on the reserve assets, or no direct redemption rights to the coin holders, in reliance of the contractual structure and relevant laws. Therefore the question of stability must be answered for each stablecoin upon thorough analysis of its unique stabilization mechanism. Due to lack of transparency with respect to the information on such design and structure, it is practically difficult to do the necessary analysis for the regulatory authorities as well as coin holders. In Part III, this Article examines two cases where the issues on the stabilization mechanism matter: Tether(USDT) and Diem project. Tether, the world’s leading stablecoin by market capitalization, has represented that tether token is a stablecoin with its value pegged to a fiat currency and each of its tokens were backed one-to-one by U.S. dollars in reserve since its launch in 2014. However, according to New York Attorney General and CFTC, Tether misrepresented and failed to disclose material facts to customers and the market in connection with the reserve assets that have not always “fully-backed” every USDT in circulation with the equivalent amount of fiat currency held by Tether in its bank accounts for certain period. In February 2021, New York Attorney General ordered Tether to pay a civil monetary penalty of $18.5millionandbannedanyfurthertradingactivitywithNewYorkpersonspursuanttoN.Y.stateblueskylaw.InOctober2021,CFTCorderedTethertopayacivilmonetarypenaltyof$41 million and to cease and desist from any further violations under the U.S. Commodity Exchange Act. These enforcement actions have not been litigated, rather have ended in settlements, which are not conclusive but provide for the meaningful insights on the regulatory approaches with respect to the reserve assets at state and federal levels. In an efforts to respond to the concerns of the global regulators Diem has radically scaled back its projects and significantly supplemented its stabilization mechanism, there still exists a number of issues unanswered or insufficiently clarified and the project remains halted. In Part IV, the author goes through recent regulatory approaches taken by EU, U.S. and international instruments with respect to stablecoins, focusing on the stabilization mechanism. In September 2020, European Commission has proposed for the first time comprehensive legislation to regulate markets in crypto-assets(MiCA) which includes a number of detailed provisions applicable to stablecoins(classified as “asset-referenced token” and “e-money token”) and its stabilization mechanism such as issuer’s capital requirements, reserve assets and token holders rights. In November 2021, U.S. President’s Working Group on Financial Markets has recommended the Congress to act promptly to ensure “payment stablecoins” arrangements are subject to a federal framework on a consistent and comprehensive basis. Also in the absence of such Congressional action, it recommends that the Financial Stability Oversight Council(FSOC) to step in and designate certain activities within the arrangements as “systemically important” payment, clearing and settlement activities. International forum and standard-setting bodies have worked to ensure comprehensive and common regulatory approaches regarding stablecoin arrangements across jurisdictions. Following G7 working group’s report on stablecoins in October 2019 analysing the risks involving global stablecoins(GSCs) and the needs for regulatory frameworks to be applied to GSCs, the Financial Stability Board(FSB) in October 2020 set out ten high-level recommendations regarding GSC arrangements to address the financial stability risks posed by GSCs, some of which have implications on the stabilization mechanism. In October 2021, CPMI-IOCSO published a consultative report on the application of the PFMIs to “systemically important” stablecoin arrangements and among others proposed guidances on the money settlements that would directly impact the stabilization mechanism. With respect to illicit finance, in June 2020 and in October 2021, the FATF has published a report on “so-called stablecoins” and provided for guidances on how the FATF Standards apply to stablecoins in terms of AML/CFT. Those would have important implications on the design and operation of the stabilization mechanism. In Part V. the author points out that in Korea there exists no legislative law or bill targeting the peculiar risks of stablecoins but we need to engage in the process for the provision of international standards applicable to stablecoins and be ready to make a new regulatory system of our own, given the borderless trading activities on virtual assets and possible implications of global regulatory landscape rapidly evolving with the exponential growth of stablecoins.

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