「자본시장과 금융투자업에 관한 법률」상 ‘투자계약증권’ 개념에 대한 검토 - 미국 연방증권법상 ‘투자계약’(investment contract)과의 비교법적 검토 -
“Investment Contract Security” Under the Capital Market and Financial Investment Business Act of Korea - A Comparative Analysis of ‘Investment Contract’ That Fall Under the Scope of U.S. Federal Securities Laws -
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In August 2007, a new law, namely the Capital Market and Financial Investment Business Act(the “CMFIBA”), was legislated to become effective early 2009. The CMFIBA will introduce a comprehensive definition of “security” that encompasses the brand-new concept of “investment contract security”. Article 4(6) of the CMFIBA defines that the “investment contract security” means “an instrument evidencing contractual entitlement under which an investor invests money, etc. in a common enterprise with other person(including another investor) and profits and losses resulting from the common enterprise primarily run by other person belong to the investor.” Ministry of Finance and Economy of Korea that initially drafted the definitional provision declared that it intended to import the so called Howey test promulgated by the courts in the United States to interpret the meaning of the “investment contract” concept under U.S. federal securities laws. The purpose of this Article is to verify whether we may assume that the meaning of the “investment contract security” under the CMFIBA is identical with that of the “investment contract” under U.S. federal securities laws and, as a result, the Korean regulatory authorities and the courts may rely on the precedents and experience on the meaning and interpretation of the “investment contract” under U.S. federal securities laws, for their future construction and application of the CMFIBA provision. Part Ⅱ of this article analyzes the “investment contract” concept under the U.S. federal statutes (i.e., Securities Act of 1933 and Securities Exchange Act of 1934). “Investment contract” is not statutorily defined, rather it has been the task of the courts to define the concept. I focus on the Howey test that was first declared by the U.S. Supreme Court in 1946 and thereafter has been modified and supplemented by the subsequent court decisions. Under the Howey test as revised, an “investment contract” is a contract, arrangement, or scheme whereby a person invests money in a common enterprise with the expectation of profits solely, or at least largely, from the efforts of other persons such as the promoter or some other third person. I also pay attention to the function of the Howey test as a criteria to determine whether the other types of instruments specifically listed under the federal statutes are securities. I argue that the Howey test is not a fixed criteria but has been subject to changes and it might face further changes or even an emergence of an alternative test. Part Ⅲ of this article examines particular business relationships where the U.S. courts have dealt with the definitional issue of the “investment contract”, in order to enhance the understanding on how the Howey test works in the real world. Such areas include, among others, real estate or personalty transactions with management arrangements, partnerships, franchises and distributorship, employee benefit plans, discretionary security and commodity trading accounts and internet games. In Part Ⅳ, I attempt to make comparative analysis of the CMFIBA and U.S. federal securities laws with respect to the meaning and function of the investment contract concept. Generally speaking, both the “investment contract security” under the CMFIBA and the “investment contract” under U.S. federal securities laws, as defined by the revised Howey test, consist of the same elements and, even though there exits discrepancies in the formulation of each element, are likely to resemble in their function as a criteria to determine whether a transaction should be treated as a security. Therefore, in Part V, I conclude that the Korean regulatory authorities and the courts may look to the precedents and experience of the United States legislature, judiciary and the regulatory body (SEC) with respect to the application of the “investment contract security” concept under the CMFIBA. On the other hand, however, given the significant differency in other statutory provisions of the securities laws and legal system in general, it would be necessary to modify the Howey test and to develop and promulgate our own standard to determine whether a transaction falls within the definition of the “investment contract security” for purposes of the CMFIBA.
Abstract
In August 2007, a new law, namely the Capital Market and Financial Investment Business Act(the “CMFIBA”), was legislated to become effective early 2009. The CMFIBA will introduce a comprehensive definition of “security” that encompasses the brand-new concept of “investment contract security”. Article 4(6) of the CMFIBA defines that the “investment contract security” means “an instrument evidencing contractual entitlement under which an investor invests money, etc. in a common enterprise with other person(including another investor) and profits and losses resulting from the common enterprise primarily run by other person belong to the investor.” Ministry of Finance and Economy of Korea that initially drafted the definitional provision declared that it intended to import the so called Howey test promulgated by the courts in the United States to interpret the meaning of the “investment contract” concept under U.S. federal securities laws. The purpose of this Article is to verify whether we may assume that the meaning of the “investment contract security” under the CMFIBA is identical with that of the “investment contract” under U.S. federal securities laws and, as a result, the Korean regulatory authorities and the courts may rely on the precedents and experience on the meaning and interpretation of the “investment contract” under U.S. federal securities laws, for their future construction and application of the CMFIBA provision. Part Ⅱ of this article analyzes the “investment contract” concept under the U.S. federal statutes (i.e., Securities Act of 1933 and Securities Exchange Act of 1934). “Investment contract” is not statutorily defined, rather it has been the task of the courts to define the concept. I focus on the Howey test that was first declared by the U.S. Supreme Court in 1946 and thereafter has been modified and supplemented by the subsequent court decisions. Under the Howey test as revised, an “investment contract” is a contract, arrangement, or scheme whereby a person invests money in a common enterprise with the expectation of profits solely, or at least largely, from the efforts of other persons such as the promoter or some other third person. I also pay attention to the function of the Howey test as a criteria to determine whether the other types of instruments specifically listed under the federal statutes are securities. I argue that the Howey test is not a fixed criteria but has been subject to changes and it might face further changes or even an emergence of an alternative test. Part Ⅲ of this article examines particular business relationships where the U.S. courts have dealt with the definitional issue of the “investment contract”, in order to enhance the understanding on how the Howey test works in the real world. Such areas include, among others, real estate or personalty transactions with management arrangements, partnerships, franchises and distributorship, employee benefit plans, discretionary security and commodity trading accounts and internet games. In Part Ⅳ, I attempt to make comparative analysis of the CMFIBA and U.S. federal securities laws with respect to the meaning and function of the investment contract concept. Generally speaking, both the “investment contract security” under the CMFIBA and the “investment contract” under U.S. federal securities laws, as defined by the revised Howey test, consist of the same elements and, even though there exits discrepancies in the formulation of each element, are likely to resemble in their function as a criteria to determine whether a transaction should be treated as a security. Therefore, in Part V, I conclude that the Korean regulatory authorities and the courts may look to the precedents and experience of the United States legislature, judiciary and the regulatory body (SEC) with respect to the application of the “investment contract security” concept under the CMFIBA. On the other hand, however, given the significant differency in other statutory provisions of the securities laws and legal system in general, it would be necessary to modify the Howey test and to develop and promulgate our own standard to determine whether a transaction falls within the definition of the “investment contract security” for purposes of the CMFIBA.
참고문헌 (51)
- 김건식, "미국증권법" (1996), 홍문사
- 김건식, "증권거래법(제4판)" (2006), 두성사
- 김건식, "미국의 증권규제" (2004), 홍문사
- 김정수, "현대증권법원론" (2002), 박영사
- 석명철, "미국증권관계법" (2001), 박영사
- 신영무, "증권거래법" (1988), 서울대학교출판부
- 안문택, "증권거래법체계" (1985), 육법사
- 윤승한, "미국증권법 강의" (2005), 삼일인포마인
- 임재연, "증권거래법(전정판)" (2006), 박영사
- 임재연, "증권규제법-미국증권규제제도 연구 및 한국 증권거래법 비교해설" (1995), 박영사
- 전홍렬, "증권거래법해설" (1997), 넥서스
- 권종호, "금융투자업 및 자본시장에 관한 법률(가칭) 제정 관련 이해상충문제 및 자율규제기관의 재정립에 관한 연구(자산운용협회 연구용역보고서)", ~ (2006)
- 김건식, "미연방증권법규상 ‘증권’의 정의" (1985), 대한변호사협회지
- 김병연, "유가증권의 개념에 있어서 포괄주의 방식의 도입", 인권과정의, 353 (2006)
- 김병연, "금융투자업과 자본시장에 관한 법률(가칭)상 증권개념의 포괄성에 대한 검토-투자계약(Investment Contract)과 현행 간접투자자산운용업법상 투자대상을 중심으로", 투신, (57) (2006)
- 김상규, "증권거래법상의 유가증권 개념론에 대한 소고" (2001), 증권예탁
- 사단법인 한국증권법학회, "유가증권의 개념 및 구분기준에 관한 연구(금융감독원 연구용역 보고서)", ~ (2004)
- 유영일, "우리나라와 미국 증권법상의 증권 개념에 관한 비교연구" (1990), 기업법의 행방(정희철 고희기념)
- 이병래, "자본시장통합법의 투자자보호제도-선진화의 실천적 함의를 중심으로", BFL, (22) (2007), 서울대학교 금융법센터
- 이준섭, "증권거래법의 쟁점에 대한 입법론적 고찰" (2000), 인천법학논총 3-1
- 이철송, "증권거래법상의 유가증권의 개념", 상사법연구, 8 (1989)
- 정순섭, "유가증권 개념에 관한 일고-?파생결합증권?의 개념을 중심으로-" (2005), KRX Review
- 정순섭, "자본시장통합법상 금융투자상품의 개념에 관한 연구", BFL, (18) (2006), 서울대학교금융법센터
- 조상욱, "자본시장과 금융투자업에 관한 법률(안)상 집합투자규제의 주요 내용 및 문제점", BFL, (22) (2007), 서울대학교금융법센터
- John C. Coffee, Jr, "Securities Laws, Selected Statutes, Rules and Forms 2005 Edition" (2005), Foundation Press
- John C.Coffee,Jr, "Securities Regulation Cases and Materials(Ninth Edition)" (2003), Foundation Press
- Louis Loss, "Fundamentals of Securities Regulation(Fifth Edition & 2006 Supplement)" (2004), Aspen Publishers
- Louis Loss, "Securities Regulation(Third Edition & 2006 Supplement)" (1999), Aspen Publishers
- Thomas Lee Hazen, "The Law of Securities Regulation(Fifth Edition)", pp.2005, Thomson
- Carl W. Schneider, "Security", Selected Articles on Federal Securities Law, 1 (1991), Section of Business Law of American Bar Association
- Carl W. Schneider, "The Elusive Definition of a “Security”: A 1990 Update", Selected Articles on Federal Securities Law, 1 (1991), Section of Business Law of American Bar Association
- Douglas M. Branson, "The Supreme Court’s Literalism and the Definition of “Security” in the State Courts, 50 Wash. & Lee L. Rev. 1943", ~ (1993)
- Ediberto Roman, "Statutory Interpretation in Securities Jurisprudence: A Failure of Textualism, 75 Neb. L, Rev. 377", ~ (1996)
- Edward T. DeSilva, "Applying the Securities Law to Condominium Resales, 58 Fordham L. Rev. 1121", ~ (1990)
- Franklin E. Gill, "Selected Articles on Federal Securities Law, Volume 1 Global Capital Markets and the Distribution of Securities" (1991), Section of Business Law of American Bar Association
- Gary S. Rosin, "Historical Perspectives on the Definition of a Security, 28 S. Tex. L. Rev. 575", ~ (1987)
- James D. Gordon, "Common Enterprise and Multiple Investors: A Contractual Theory for Defining Investment Contracts and Notes, 3 Colum. Bus. L, Rev. 635", ~ (1988)
- John F. Wagner Jr, "Common Enterprise Element of Howey Test to Determine Existence of Investment Contract Regulable as Security within the Meaning of Federeal Securities Act of 1933 (15 USCS §§77a et seq.) and Securities Exchange Act of 1934 (USCS §§78a et seq.), 90 ALR Fed. 825", ~
- Kenneth P.Krohn, "Fractional Ownership and Timeshare Programs:Are They Subject to the Securities Act of 1933 and Securities Exchange Act of 1934?", ~ (1999)
- Kyle M. Globerman, "The Elusive and Changing Definition of a Security: One Test Fits All, 51 Fla. L. Rev. 271", ~ (1999)
- Lewis D. Lowenfels, "What is a Security under the Federal Securities Laws?, 56 Alb. L. Rev. 473", ~ (1993)
- Marc I. Steinberg, "The Supreme Court and the Definition of ‘Security’: The ‘Context’ Clause, ‘Investment Contract’ Analysis, and Their Ramifications, 40 Van. L. Rev. 489", ~ (1987)
- Park McGinty, "What is a Security?, 1993 Wis. L. Rev. 1033", ~
- Randall W. Quinn, "Development of the Securities Law in the Supreme Court: The Definition of “Security” and the Implication of Private Rights of Action, 35 How. L.J. 319", ~ (1992)
- Robert Anderson Ⅳ, "Employee Incentives and the Federal Securities Laws, 57 U. Miami L. Rev. 1195", ~ (2003)
- Robert C. Art, "Sell A Condominium, Buy A Securities Lawsuit: Unwarranted Liabilities in the Secondary Market, 53 Ohio St.L.J. 413", ~ (1992)
- Ryan C. Farha, "SEC v. Edwards: An Opportunity to Knock on the Viability of the Howey Test as the Gatekeeper for the Federal Securities Laws, 31 Okla. City U. L. Rev. 161", ~ (2006)
- Stephen G. Christianson, "What is an “Investment Contract” within the Meaning of §2(1) of the Securities Act of 1933(15 U.S.C. §77b(1)), Defining the Term “Security” as Including an Investment Contract, 134 A.L.R. Fed. 289", ~
- Theresa A. Gabaldon, "A Sense of a Security: An Empirical Study, 25 J. Corp. L. 307", ~ (2000)
- Thomas J. Sherrard, "New Twists on What is a Security, Corporate Law and Practice Course Handbook Series PLI Order Number 3057, Practising Law Institute", ~ (2004)
- William J. Carney, "Defining a Security: The Addition of a Market-Oriented Contextual Approach to Investment Contract Analysis, 33 Emory L.J. 311", ~ (1984)