조각투자의 증권성에 대한 연구

Abstract

The recognition of Music Cow’s piece investment as securities under the Korean Capital Market Act marks the first time the “Howey test” has been applied in Korean history. This paper examines the significant decisions made by financial authorities in regards to Music Cow’s piece investment, as well as piece investments in “Korean native cattle” and “artwork”. In the case of Music Cow, it is difficult to classify the investment as securities due to its significant differences from traditional securities (such as stocks and bonds) in terms of “expectation of profits,” "business," and reliance on "mainly the efforts of others." Additionally, the original beneficiary rights held by the management trust between Music Cow Asset and the Copyright Association and the derivative claim rights held by the investor are virtually the same. Since the beneficiary right of the management trust is not a financial investment product, it is possible that the right to claim participation in copyright fees may not be a financial investment product either. While the issue of investor harm due to the secondary market and bankruptcy risk is a serious concern, and the authorities' conditional measures are appropriate, this should not be used as a factor in securities judgment simply for the purpose of investor protection. In the case of artwork piece investment, it is difficult to consider the investment as securities due to the close joint ownership of the investors and the lack of efforts or business properties on the part of the promoter to increase the value of the investment. In the case of piece investment in Korean cattle, securities properties can be relatively easily recognized due to the active business activities of the cattle farmers. In contrast, in the cases of Music Cow and artwork piece investments, it is difficult to say that there are significant efforts or business activities to increase the value of copyright and artworks. However, in the case of Korean cattle investment, the breeding farmers are responsible for raising the calf, so clear business properties exist. This type of business has been judged as an investment contract security in previous instances of the "Howey test" in the United States. While the financial authorities demanded a business reorganization as a condition of exemption from sanctions to protect investors, most of these requirements were unrelated to the judgment of securities properties. This suggests that the pressure to protect investors may have influenced the authorities’ judgment in applying the “Howey test.” However, the authorities' measures to protect investors should not be underestimated, and this issue should be addressed by expanding the scope of current investment contract securities. The “Howey test,” established in the United States in 1946, has not been effective in addressing new investment measures such as virtual assets like Bitcoin and recent joint ownership-based piece investments. It is desirable to redefine and expand the definition of financial investment products and investment contract securities in order to prepare for the future and to balance the risks of new investment tools based on new information technology with the benefits of creative innovation.