일본 금융상품거래법상의 유가증권 개념에 대한 연구 - 자본시장법상 증권 개념과의 비교연구를 중심으로 -

Abstract

This article deals with the definition of security under the Financial Instruments and Exchange Law(hereinafter, FIEL) of Japan in order to compare it with that under the Capital Market and Financial Investment Services Act (hereinafter, CMFISA) of Korea. Especially, this article makes an analysis of the comparison focusing on the concept of 'investment contract' derived from the Howey test under U.S. federal securities laws. The latest legislations in Japanese financial markets involved abolishing four laws, including the Financial Futures Trading Law, and consolidating them into the Securities and Exchange Law (hereinafter, SEL). Furthermore, they involved amending 89 laws, and consolidating some of the amended provisions into SEL. As a result, SEL covers a wider scope of financial instruments than before. Accordingly, it is renamed ''Financial Instruments and Exchange Law''. In recent years, financial instruments that are not regulated by SEL and other investor-protection laws have started to appear on the back of the progress in financial technology, etc., and users have been victimized in some cases. FIEL has expanded the scope of regulated products as follows, in order to close the loopholes in the existing legal system for investor protection. The definition of 'security' as financial instruments regulated by FIEL has been expanded. For example, interests in trusts in general are regarded as security and holdings of so-called collective investment schemes (funds) are comprehensively regarded as security. CMFISA has also been implemented since Feb. 4th 2009 in Korea. CMFISA is to contribute to capital market and investor protection by integrating capital market laws, including the followings: the Securities and Exchange Act, the Futures Trading Act and the Act on Business of Operating Indirect Investment And Assets, etc., except the Banking Act and the Insurance Business Act from the conventional existing laws related to finance. CMFISA introduced the concept of ‘Financial Investment Instruments(security and derivatives)’ as a comprehensive system, contrary to the positive list system under the Securities and Exchange Act. Since the definition of security derived from the Securities and Exchange Act had adopted a positive list system, it had been unattainable to regulate properly the new products appearing together with development of the capital market. Consequently, for this reason, there had been destitute of investor protection. It appears desirable to pursue a comprehensive definition of security to ensure appropriate protection of the investor but, at the same time, it could cause confusion in the legal system for lack of definitude and stability in the definition of security. In addition, ‘Financial Investment Instruments’ becomes the core concept which decides the scope to apply CMFISA with the same matter of security under the Securities and Exchange Act. In particular, the definition of security under CMFISA includes investment contract security derived from the Howey test under U.S. federal securities laws. Therefore, the Korean regulatory authorities and the courts are likely to play an important role for determining whether an instrument constitutes a security, same as the United States. Thus, Part II of this article reviews the change of the scope of security in Japan and Part III examines the concept and characteristics of security under FIEL, Part IV analyzes the concept of security under CMFISA in comparison with the definition of security under U.S. federal securities laws as well as FIEL in Japan in order to achieve the purpose of this article, which is to establish criteria about ‘Financial Investment Instruments’ especially 'investment contract security' that will be generated by applying CMFISA.