As the trend of digital transformation accelerates at home and abroad, structural changes in the financial sector are being made in two directions that differ from the underlying technology and orientation. First of all, due to digital finance phenome...
As the trend of digital transformation accelerates at home and abroad, structural changes in the financial sector are being made in two directions that differ from the underlying technology and orientation. First of all, due to digital finance phenomena caused by artificial intelligence (AI), big data, the Internet of Things (IoT), and cloud computing which are based on hyperconnectivity, competition between traditional financial sectors, Fintech, and Big Tech is largely ongoing. Next, based on blockchain and distributed ledger technology, a digital asset ecosystem aimed at decentralization is spreading.
This paper aims to establish various phenomena related to digital finance and digital assets to be systematically discussed according to methodologies such as Reference Area(Referenzgebieten) and Risk Administration(Risikoverwaltung) at the level of administrative law, analyze the current status and problems of related legal systems, and suggest ways to improve the financial administration law regulatory system for digital finance and digital assets. The risks that can arise from the digital transformation of finance are systemic risks that cannot be captured by post-regulation of individual actions, because they need to be reorganized as the subject of risk administration, which has the main administrative action of risk management and adjustment beyond the traditional administrative risk prevention (Gefahrenabwehr). In this process, it is inevitable that financial administration relies on reference areas such as digital technology and markets, and the reference area theory provides a normative basis for controlling financial administration as a risk administration according to the principles of the administration of the rule of law.
First of all, "digital finance" does not fundamentally change the risk-bearing structure of financial intermediation function performed by traditional finance (TradFi), but it is understood that it aims to redesign the function of existing finance by using digital technology and rules as a vehicle for trust instead of a centralized regulation system that uses financial institutions and the state's financial regulation and supervision as a trust-mediating mechanism. In particular, as new players such as Big Tech and platform operators enter the financial industry, network effects caused by platform intermediation for non-face-to-face transactions and the blurring of boundaries between the financial industry and non-financial industries such as ICT (Big Blur) are accelerating, and the Web 2.0 phenomenon, in which financial consumers participate in the Internet web to create new value, is also becoming established in the financial sector. Furthermore, Big Tech, fintech and others are actively entering the payment and settlement sector, which, in traditional finance, did not account for a large portion of both financial intermediaries such as banks and the government's financial regulation and supervision, and they are reorganizing existing finance. Accordingly, payment and settlement is emerging as a key area of digital finance.
In addition, the concept and function of money in digital finance is being discussed again as the function of money, such as unit of account, medium of exchange, and store of value, is differentiated in decentralized finance (DeFi), along with currency competition in the real economy. Along with the expansion of the use of new digital technologies, the importance of cyber security in the digital finance has also increased as the interconnection between financial companies, and between financial companies and tech companies has increased.
Next, based on distributed ledger technology (DLT) and consensus mechanisms, the “digital asset” ecosystem is actively aiming for decentralization and Web 3.0 by replacing the dominant Web 2.0 such as economy and finance led by platform operators and big tech. If digital finance went beyond the fianancial intermediation function of traditional finance and operated as a platform intermediation structure, digital assets can be seen as trying to establish a so-called decentralized trust system that guarantees the trust of financial transactions in blockchain protocols. As classified by the Swiss Financial Market Supervisory Authority (FINMA), these digital assets are generally classified into three categories: payment tokens, utility tokens, and asset tokens according to their economic functions. Meanwhile, as a comprehensive legislation on digital assets, the European Union's Regulation (EU) 2023/1114 on Markets in Crypto-assets (MiCAR) classifies the regulated targets into three categories: utility tokens, asset reference tokens and e-money tokens, of which the latter two mainly focus on regulating stablecoins, one of the payment tokens. And most of asset tokens are financial instruments under the Directive 2014/65/EU on markets in financial instruments (MiFIDII), which governs securities and capital markets. By the way, in the case of STO (Security Token Offering) and stablecoins, it can be seen as an area where digital finance and digital asset phenomena intersect due to both the issues of payment settlement system or capital market in traditional finance and the characteristics of distributed ledger technology as digital assets.
In the digital finance sector, the Electronic Financial Transactions Act enacted in 2006 serves as a general law on digital finance through digital payment such as means of electronic payment, entry regulations for electronic financial companies, business behavior regulations for financial institutions and electronic financial companies when financial institutions and electronic financial companies engage in electronic financial transactions with users, and cyber security regulations through obligations to ensure the safety of electronic financial transactions. Financial platform operators are regulated as the brokerage business of financial product sales under the Financial Consumer Protection Act. The legal system for the separation of finance and industry from the traditional perspective of is still applied to the fields of finance and information and communication technology (ICT) in digital finance.
In the field of digital assets, regulations on the separation of financial and virtual assets, along with regulations prohibiting domestic ICOs since 2017, are influencing as shadow regulations in the form of administrative guidance. In addition, in accordance with the Act on Reporting and Using Specified Financial Transaction Inforomation (Specified Financial Transactions Information Act) for the purpose of preventing money laundering, a notification regime subject to formal acknowledgment is operated as a kind of entry regulation for the digital asset service providers, and the transaction of digital assets by corporations such as companies has been virtually prohibited through the system of bank account verifying real-name. Meanwhile, the Virtual Asset User Protection Act, which only contains regulations on the property protection of virtual asset users and unfair trade in the virtual asset market among regulations on the digital asset market, regulates the digital asset industry along with the Specified Financial Transactions Information Act. On the other hand, the Electronic Securities Act and Capital Market Act were recently revised to allow non-traditional securities such as investment contract to be issued and distributed in the form of electronic securities for security tokens among digital assets.
However, in the face of the deepening Web 2.0 and Web 3.0 environments, the current regulatory framework for digital finance and digital assets clearly reveals its limitations. The Electronic Financial Transactions Act is weakening its normative effectiveness not only for the payment and platform industry and market infrastructure, but also for the cyber security sector that must respond to the recent development of digital technology. On the other hand, regulations on the separation of finance and industry based on regulatory purposes such as restraining the concentration of economic power in the entire national economy are also revealing their limitations due to the Big Blur phenomenon of finance. n addition, in the case of the central bank's digital currency (CBDC) issue, new problems are raised in the digital finance sector without sufficient social discussions on its positive and negative effects of CBDC.
In the digital asset sector, the government's shadow regulation has continued to have an impact since 2017, and the limitations of the Virtual Asset User Protection Act as the first stage of digital asset legislation are revealed in the somewhat deformed legal system where entry regulations for digital asset service provders are imposed under the Specified Financial Transactions Information Act. In addition, the Electronic Securities Act and the Capital Market Act were recently revised for securities-type tokens, but unlike the EU, it plans to virtually restrict the issuance of security tokens through public blockchains, and the distribution of security tokens is also questioned in Korean civil legal situations such as limited statutory transferability of investment contract securities.
In this situation, this paper argued that it is urgent to enact the ‘Digital Asset Market Integration Act’ (tentative title) with a functional regulation that encompasses product, industry, and user protection aspects and includes special cases for stablecoins, considering the EU's MiCAR, the US's enactment of the GENIUS Act, and the like.
On the other hand, the Electronic Financial Transactions Act, which was enacted in 2006 just before the release of smartphones, was completely reorganized. In addition to the ‘Digital Financial Industry and User Protection Act’ (tentative title), which regulates the digital payment industry and financial platforms, it is necessary to develop and dismantle the ‘Act on Cyber Security in the Digital Finance’ (tentative title) as a system of discipline for risk administration for cyber security in the financial sector beyond simple risk prevention against cyber attacks. Furthermore, this paper argued that it is necessary to promote financial innovation and competition and to pursue financial stability as well by separating monetary law regulations under the Bank of Korea Act and enacting the ‘Act on Money and Payment and Settlement’ (tentative title), which regulates the financial market infrastructures (FMIs) regarding payment, clearing, and settlement of the payment and settlement system.
Meanwhile, this paper revealed that the improvement of the administrative and civil law regulatory framework for security tokens or asset tokens that encompass real-world assets (RWA), which are newly in the spotlight abroad, is also an important task in terms of digital assets. In addition, this paper emphasized that reorganizing the regulation of the separation of finance and industry, which still remains for the purpose of restraining the concentration of economic power, is an important task in improving the regulatory system for digital finance and digital assets.