EU 암호자산시장법(MiCA)에 관한 고찰 - 암호자산 규제법으로서의 포괄성과 그 한계를 중심으로 -

초록

After several years of intense legislative process, the Markets in Crypto-Assets Regulation(MiCA) were officially published in June 2023 and is due to take effect in 2024. MiCA, a landmark regulatory framework, is the first comprehensive and tailored regulatory framework for crypto assets among major jurisdictions. MiCA will have big impacts beyond EU and serve as a benchmark model for other legislators across globe. In this article, the author focuses on the scope of MiCA, i. e. whether it is ‘comprehensive’ enough to apply to any crypto assets in any circumstances or there exist clear or inherent limitations therein. MiCA consists of 9 titles and 149 enacting articles including 119 recitals and 6 annexes. Adopted under the form of a European Regulation rather than a Directive, MiCA will be directly applicable to all EU Member States without the need for legislation at a Member State level. Crypto-industry and market in EU will be subject to a single law at EU level(MiCA), but will be generally subject to the enforcement by a competent authority in a Member State, and then will benefit from the result of such enforcement throughout the entire EU Member States by way of so called “EU Passport”). MiCA, encompassing the EU crypto market as a single market, introduces (i)an authorization system for crypto assets service providers, (ii)a disclosure system for a person to make a public offer or to seek admission to trading of crypto assets, including a strict and unique set of authorization system for so called “stablecoins” as defined under MiCA as “asset referenced token” and “e-money token”, and (iii) market abuse rules. It is based upon existing EU financial rules such as MiFID II, but is also tailored to reflect yet underdeveloped stage of crypto market and to accommodate digital features thereof. Also MiCA provides for transitional provisions for issued and outstanding crypto assets and entities already providing crypto assets services in order to incorporate them into the MiCA regime. However the comprehensiveness of MiCA has an inherent limitation because it is in essence an administrative law in financial area to govern crypto asset market participants, and as such it does not cover private law aspects, including insolvency law and private international law aspects, nor AML aspects of crypto assets. Even in terms of financial law aspect, MiCA is not designed to apply to any and all crypto assets as broadly defined under MiCA. First of all, MiCA is not applicable to crypto assets that are subject to existing EU financial rules, including financial instruments and the criteria for such exclusion still remain ambiguous. Also it is not applicable to the recently developed crypto areas including NFT and De-Fi as well as CBDC. So it might be assessed that the comprehensiveness of MiCA is considerably limited. Nonetheless she insists that it is worth keeping on eye to EU Parliament’s efforts to supplement such shortcomings and, as MiCA foresees a number of implementing measures at the EU level (such as ESMA) in 2024, waiting for the complete features of MiCA to come. Given the digital nature of crypto assets, cross-border enforcement and supervisory cooperation among multi jurisdictions are essential for effective regulation of crypto market participants. MiCA will be a starting point as a crypto regulatory framework for future legislation by other jurisdictions and we need to be prepared for the upcoming legislations in conformity with the international standards including MiCA.

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