For private placement issuance of token securities, is it fine if I only receive investments from up to 49 people?

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I work as a finance executive at a company. There have recently been internal concerns that some accounting treatments may not meet standards, and I heard there's a possibility they could be flagged during external audits. Even if not intentional window dressing, can it lead to criminal punishment if judged as accounting fraud, and to what extent would I actually bear responsibility?

token securities

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作者: 김국일

To put it simply, private placement issuance of token securities is judged not by the standard of "actual number of investors of 49" but by "the number of people who received the solicitation to subscribe," so a numerical limit alone is not safe.

Token securities can be assessed as securities under the Capital Markets Act, in which case if investment solicitation is made to 50 or more persons, it is regarded as a public offering and regulations apply.

What is important here is not the actual investment, but "the act of solicitation itself."

This includes everyone to whom you delivered a proposal or conducted an investment explanation, and whether or not a contract was concluded is not the criterion for judgment.

For example, even if you conducted token securities investment explanations to 80 people and only 30 of them invested, it may already meet the public offering requirements.

Particularly, in the token securities structure, problems are likely to occur because promotion through online channels is frequent.

Website disclosure, SNS announcements, Telegram notices, distribution of investment explanation materials, etc. can all be interpreted as acts of solicitation, so the target audience may unintentionally expand.

In this case, even if designed as a private placement, there is a risk of being subject to public offering regulations under the Capital Markets Act.

In such cases, it can be evaluated as having conducted a public offering without submitting a securities registration statement, and there is also the possibility of becoming subject to sanctions for selling unauthorized financial investment products.

In practice, to prevent this, the targets of solicitation are specified in advance, the routes for investment proposals are restricted, and solicitation history is managed separately.

Also, it is generally common to exclude public promotion targeting an unspecified majority as much as possible, and to maintain private placement requirements, additional conditions such as resale restrictions among investors must also be reviewed.

Therefore, it is accurate to understand that private placement of token securities is not a matter of limiting the number of investors, but a matter of how to control the methods and scope of investment solicitation.

For matters where the application of financial regulations is important, such as token securities, reviewing the structure in advance and examining the relevant laws helps prevent unnecessary legal risks.