부동산 조각투자의 법적 쟁점 및 규제

Abstract

Recently, fractional investment for real estate (hereafter “FIR”), a new investment instrument that allows investors to buy expensive real estate with smaller capital, is gaining a lot of attention in the market. Fractional investment means owning a fraction or portion of the real property or the right of property, by more than one investor. In the Korean market, a real estate trust is mainly used as the form of transaction in relation to the FIR on the FIR investment platform, and there is also a case where a real estate fund is used. The current FIR instruments or services recognized in Korea, however, include some elements that may not be allowed by relevant laws and regulations such as the Financial Investment Services and Capital Markets Act (hereafter ”FISCMA”). Considering this respect, the FIR instruments currently available in the Korean market have been either designated as ”Innovative Financial Service” under the Special Act on Support for Financial Innovation or granted “Special Case for Demonstration” under the Act on Special Cases Concerning the Regulation of Regulation-free Special Zones and Special Economic Zones for Specialized Regional Development to grant regulatory exemptions, such that the FIR products can be transacted on the platforms through trust beneficiary certificates or collective investment securities, without obtaining authorization for financial investment business and permission for the exchange market of the FIR. But, the problem is that such regulatory exemptions are only temporarily granted. Therefore, all relevant laws and regulations should be rearranged before the exemptions expire for the FIR business entities to continue to engage in their businesses by obtaining approval based on the newly arranged rules. Or, they should immediately acquire the necessary license and permission for their business to comply with those regulations that have been exempted from the application so far. For reference, major global countries including the U.S., EU, and Singapore are also overhauling related regulatory systems to vitalize and internationalize the digital asset market. Due to the nature of the FIR structure based on an agreement on real estate management and disposal trust (hereafter “RTA”), the FIR investors hold beneficiary rights to get the distribution of profits earned from the operation and/or disposal of real estate trust in proportion to their investment amount. The two main forms of the FIR currently recognized in Korea are (a) sharing beneficiary right for the issued security where only one security is issued (so-called, “quasimiteigentum”), and (b) holding the beneficiary security where the security is equally divided into multiple securities among the investors and registered electronically pursuant to the Act on Electronic Registration Of Stocks, Bonds, Etc. (hereafter “Electronic Registration Act”). Meanwhile, the FIR platforms are now applying blockchain-based Distributed Ledger Technology so that the digital tokens which would be equivalent to the beneficiary security of the real estate trust can be used for transactions. In relation to fractional investment, the Financial Services Commission (FSC) recently published 2 significant legislative plans that seem to reflect such environmental change: i) the Guideline for New Securities Business Including Fractional Investment on 29 April 2022, and ii) the Maintenance Plan of Regulation System for Security Token Offering(hereafter ”STO Plan”) on 6 February 2023. According to the STO Plan, the FSC has defined the Security Token as “the digitalized security of FISCMA based on Distributed Ledger Technology”. By applying such definition criteria to the FIR, the digital tokens used in lieu of the beneficiary securities in the FIR market could be regarded as a kind of Security Token as defined under the STO Plan.