미국 연방증권법상 ‘출자지분’(Equity Interests) - 소위 자본시장통합법상 ‘지분증권’ 개념과의 비교법적 검토

Equity Interests That Fall Under the Scope of U.S. Federal Securities Laws - A Comparative Analysis of ‘Equity Security" Under the New Capital Market Consolidation Law of Korea -

&nbsp;&nbsp;To what extent should the regulation by the securities laws be justified in connection with equity financings by a business association? In 2006, Korean government announced that it will legislate a new law (so called “Capital Market Consolidation Law", hereinafter the “CMCL")that will have a sweeping effect on the capital market and financial industry in Korea and, which, among others, will introduce a comprehensive definition of “security" that encompasses “equity security", “Equity security" under the CMCL will include any equity interest in a business association, as well as “investment contract security" derived from the so called Howey test under U.S. federal securities laws. This article pays close attention to the prospect of increased regulation in the area of equity financing once the CMCL becomes in force and takes a critical view of such increased regulation.<BR>&nbsp;&nbsp;Part Ⅱ of this article examines the criteria that U.S. federal courts have developed for determining whether an equity interest in a U.S. business association is a “security" for purposes of the U.S. federal statutes (i.e., Securities Act of 1933 and Securities Exchange Act of 1934). With respect to any “stock" having the usual characteristics of common stock of a traditional corporation, the Supreme Court of U.S. established the per se rule in the companion cases of Landreth and Ruefenacht and, as a result of such holdings, such stock is deemed per se as a “security" for the purposes of the federal securities law. The lower federal courts have utilized the Howey test to determine whether instruments that are not specifically set forth in the statutory definition of the term “security" fall under the scope of the federal securities law, such as ownership interests in general partnerships, limited partnerships, and limited liability companies. Applying the Howey test (the fourth element of which has been the key determinant), the courts, relying on traditional notions of the roles that general and limited partners play within their respective firms, have held that a general partnership interest is presumed not to be an “investment contract" (e.g. the “Williamson presumption"), but a limited partnership interests is presumed to be an “investment contract" under the federal securities laws. As to interests in a relatively new business entity such as limited liability companies and limited liability partnerships, the courts have looked into the economic realities of situations on a case-by-case basis (primarily focusing on whether the interest holder actively participates in the management control or invests his money anticipating profits from the efforts of others).<BR>&nbsp;&nbsp;Part Ⅲ of this article provides for the comparative analysis of U.S. federal securities law and the CMCL with respect to how each approach the question of determining equity interest that fall under its scope of regulation. Under the CMCL, almost all equity interests in any form of Korean business associations are defined to be per se “security" (especially in the cases of equity interests in the forms of business associations that are enumerated within the “equity security" definitional clause of the law). As a result, Korean courts would not be able to find a leeway to interpret the statutory definition of “security" in order to reflect the economic realities underlying each relevant transaction. In comparison, if we were to apply the “security" criteria that U.S. federal courts have developed to equity interest in various types of Korean business associations, we would find that only a small part of such equity interest will fall within the scope of “security" for the purposes of U.S. federal securities laws and the remaining categories of equity interests will not, or will be presumed not to, be treated as a “security".<BR>&nbsp;&nbsp;Part Ⅳ of this article argues that although the proposed language of the CMCL creates a cle