지급결제수단인 스테이블코인의 증권성 여부 : 루나, 테라를 중심으로

Abstract

This article focuses on issues regarding “whether stablecoins are securities, and thus must be subject to securities regulation under the Korean securities regime?”. In particular, this article analyzes whether Terra Luna project can be regarded as “investment contract securities” under the Korean regime. While the Korean regime much borrowed from the “investment contract” concept in the US Securities Act of 1933, the Korean Capital Market Act stipulates stricter requirements in defining the Korean “investment contract securities”. The article stresses firstly that the definition of “securities” are differently structured in Korean regime, in which “financial investment products” are classified into 2 categories ie. “securities” and “derivatives”. While securities does not trigger ‘additional obligations’ to the holders, derivatives may do; and thus in Korea futures should be derivatives rather than securities. Likewise, 4 prongs of Howey tests are differently stipulated in Korea, and thus should be differently interpreted. The article argues that Terran Luna lack the required characters for the Korean “investment contract securities”, in particular (i) there is no common enterprise among holders of Terra Luna, (ii) there is no leading third party in the Terra project, in which people in the community including DApp operator, holders etc contributed collectively to the operation of the project, (iii) the holders of Terra Luna didn’t hold rights to the outcome of the common enterprise. The article concludes that while Terra Luna work as payment means, they cannot constitute “securities” under the Korean regime.