유럽 암호자산시장법 연구 - MiCAR의 적용범위와 업규제를 중심으로 -

EU’s Markets in Crypto-Assets Regulation (MiCAR), which was first drafted on September 24, 2020 and is scheduled to be fully implemented on December 30, 2024, has attracted a lot of attention as the first law in the world to comprehensively regulate disclosure, service providers, and unfair trading for stablecoins and crypto-assets other than stablecoins in a single special law. Although there have been studies on MiCAR in Korea, there have not been enough studies that have analyzed the scope of its application and service provider regulation based on the final bill that is scheduled to be implemented. Therefore, this study first categorizes the scope of MiCAR into material, personal, territorial, normative, and temporal scopes, introduces the main issues covered by MiCAR, and attempts to evaluate them. Overall, MiCAR has taken a deregulatory stance on crypto-assets other than stablecoins to accommodate digital transformation, but strict regulation for stablecoins has been adopted in terms of financial stability, monetary policy, etc. Among the relaxed regulations are that utility tokens for existing goods or services are exempted from the disclosure regulations of MiCAR Title Ⅱ, and unlike prospectuses, crypto-asset white papers are not only not subject to authorization requirements but also have no one-year expiration date. The content of crypto-asset white papers is also relatively less regulated than prospectuses. It is also worth noting that MiCAR is not a new regulation, as it is tailored to fill a regulatory gap where crypto-assets are not covered by existing EU financial regulation. Regarding business regulation, it is significant that MiCAR categorizes 10 types of crypto services and requires a legal entity to be authorized to operate these crypto services, while existing financial institutions, except banks, can operate crypto industries without authorization if they are engaged in the equivalent business as crypto-asset services by simply notifying the authorities. Based on the implications of MiCAR’s regulatory design, this paper suggests some considerable points for Republic of Korea which is preparing for the second phase of legislation. First, while establishing the classification and scope of virtual assets, this author suggests, financial instruments themselves but not ones that meet the requirements of individual financial law as is currently the case. It was also suggested that the scope of virtual asset service providers themselves should be expanded, and that their categorization could follow the current capital market system, which is advantageous in terms of legal stability and convenience for the users of the law. The so-called ‘separation principle between financial services and virtual asset services’ might be difficult to abolish immediately, due to the reality of the current virtual asset market in Korea, and it was argued that it should be abolished in the mid- to long-term after the implementation of the full-fledged regulation. Finally, it was emphasized that legislative measures are strongly required to provide legal protection of the rights of virtual asset investors (right of return) held through virtual asset trading platforms in the Virtual Asset User Protection Act to promote legal certainty of transactions.