Deng Jianpeng: Comprehensive Thinking on the Difficulties of Blockchain Supervision

I. Introduction

The blockchain is a technology with de-trust (which can be executed without the need for third-party trusted organizations), value-programmable (can set smart contracts) and decentralized features, and its potential value is difficult to estimate. [1] In the previous research, the author pointed out that as a great innovation in the field of information technology, the blockchain will promote the transformation of the information Internet to the value Internet, which may affect many industries and even challenge some existing business models and systems. In recent years, it has received the attention of many countries, institutions and individuals. Countries have introduced regulatory policies to control their risks (see Deng Jianpeng, Sun Penglei: “Intermediary Chain Supervision and Compliance Response”, Mechanical Industry Press, 2019). However, unlike the Internet and information technology, Bitcoin and the underlying technology blockchain it relies on are at the outset, that is, they carry their own financial risks. They are not completely technically neutral or value neutral, or blockchain technology exists. Typical values ​​are biased. In early 2009, an anonymous network (or agency) named Sakamoto said in the Bitcoin White Paper, "We need a cryptographic-based verification rather than a trust-based electronic payment system that allows any two parties to trade directly. There is no need to rely on trusted third parties.” [2] The emergence of bitcoin and blockchain technology, partly in line with the private issue of Hayek’s currency, and the expression of some computer geeks over the years The aversion of the financial crisis. Some researchers believe that the emergence of blockchain is actually a solution proposed by the public for the financial crisis. From an economic perspective, blockchain technology and the financial industry have complementary logic. [3]

Under the guidance of such values, blockchain application scenarios are mostly in the field of financial and credit deficiencies. Researchers believe that this includes such things as digital currency, crowdfunding, clearing, settlement and auditing, smart contracts, copyright and licensing, notarization and Records, etc. [4] A white paper in recent years also pointed out that financial services is one of the earliest application areas of the blockchain, and it is also one of the areas with the largest number of blockchain applications and the highest popularity. Blockchain has become one of the important technologies for many financial institutions to compete for new financial technologies. [5] Therefore, the blockchain is widely used in financial related fields such as banking, payment, bills, securities, insurance, and accounting auditing. [6] Since 2009, blockchain technology has been plagued by huge financial risks, especially in the areas of virtual currency, virtual currency exchanges and first-time token issuance. In the field of bitcoin alone, researchers believe that the risks it poses include facilitating black market transactions, tax avoidance, money laundering, and terrorist financing. [7]

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Therefore, some scholars believe that the regulatory disputes related to the blockchain system have emerged. Broadly speaking, the debate is centered on three main points: illegitimacy, classification, and legal effectiveness. [8] In essence, the financial risks involved in blockchain technology are the most typical and concentrated. Mainstream researchers believe that there are three main types of business activities that need to be incorporated into the blockchain: one is the derivation of virtual currency-based assets. Trade transactions, such as bitcoin futures trading under the supervision of the US Commodity Futures Trading Commission. The second is the payment service provided for virtual currency transactions. If the use of legal tender to provide transfer services for bitcoin trading is a payment service, it is required to hold a payment service agency license. The third is a private virtual currency trading platform. [9] In addition, it also includes the ICO financing model. [10] Due to its huge risks, this industry has been valued by China's central financial regulatory authorities. Since 2013, the regulatory authorities have issued a series of important administrative normative documents to implement the regulation of blockchain. The so-called administrative normative documents generally refer to the administrative subjects who, in accordance with legal authority and procedures, formulate and publish non-specific objects such as citizens, legal persons or other organizations that are generally binding and can be applied repeatedly. The general term for decisions, orders, etc. [11] In recent years, the normative documents related to the field include the "Notice on the Prevention of Bitcoin Risks", "Announcement on Preventing the Risk of Subsidy Issuance Financing", "On the Prevention of Illegal Fund Raising in the Name of "Virtual Currency" and "Blockchain" Risk Warning, "Persistently Preventing ICO and Virtual Currency Trading Risks".

In the past two years, the regulatory policy has mainly targeted ICO. Prior to 2016, China's ICO was limited to limited professionals who understood blockchain technology. But since the beginning of 2017, many scammers have been sideways. ICO's financing targets have been infiltrated by the niche to the general public. According to the "Report on China's ICO Development in the First Half of 2017" released by the National Expert Committee on Internet Financial Security Technology on July 25, the scale of ICO financing and the level of user participation have accelerated, with a cumulative participation of 105,000. [12] A large number of retail investors who do not have risk tolerance at all are flocking. According to our survey in mid-2017, at the time, more than 90% of ICO projects were suspected of fraud. A small number of projects, although not related to fraud, turned to the ICO financing model due to the failure of early angel financing. Therefore, the risks of these ICO projects are very high, and ICO has become a means for fraudsters to engage in illegal financial activities. [13] Around 2017, overseas ICOs also have many problems such as regulatory obstacles, a large number of frauds, and negative public perceptions. [14] The ICO project has increased dramatically, and a large number of blockchain financing projects lack complete ex ante regulation and approval mechanisms, making the corresponding investment extremely risky. Based on the above reasons, the seven ministries and commissions including the People's Bank of China issued the “Announcement on Preventing the Risk of Subsidy Issuance Financing” (hereinafter referred to as “94 Announcement”)[15] and other administrative normative documents on September 4, 2017.

However, on the one hand, few scholars currently sort out and carefully evaluate all relevant normative document systems in China in recent years; on the other hand, for some of these regulatory policies, researchers are more controversial, and some influential research is negative. Evaluation. For example, scholars say that China's current regulatory measures for blockchain finance are not a phased strategy to avoid financial risks. However, blind prohibition is not a long-term solution. It is not only difficult to avoid financial risks, but also will inhibit financial innovation. How to legally regulate blockchain finance, prevent and resolve its potential risks, make scientific and technological innovation better serve China's financial and economic development, and safeguard China's right to speak in the field of international financial science and technology is undoubtedly urgently needed to be solved. problem. [16] To this end, this paper first sorts out the main contents of blockchain supervision in the past two years. Secondly, it evaluates the important issues of regulatory connotation. Finally, it rethinks the regulatory policy and puts forward some suggestions.

Second, the main content and impact of regulatory policies

94 "Announcement" pointed out that the financing of token issuance is essentially an act of illegal public financing without approval. The ICO, without the approval of the regulatory body, issues it to the public with its own crypto tokens to raise investors' bitcoins or Ethereum. [17] 94 "Announcement" warns the society of relevant risks, including the risk of false assets, the risk of business failure, and the risk of investment speculation that may exist in the financing and transaction of tokens. After the regulatory authorities issued the 94 Announcement, all domestic ICOs were banned. In the relevant judicial interpretations, the “funds” in illegal fund-raising activities include both money and other property. According to documents issued by the People's Bank of China in 2013, Bitcoin is a virtual commodity that individuals can legally hold and trade. According to the "General Principles of Civil Law", the virtual property of the Internet is protected by law. Bitcoin, etc., as a mainstream virtual currency with typical market prices that can be exchanged in both directions at overseas trading institutions, has legal property attributes. [18] ICO behavior essentially touches on the nature of raising funds to the public and involves the risk of illegal fundraising.

As the author's previous research pointed out, there are two main types of ICO, one is the fraudulent ICO, which may be suspected of pyramid schemes or fund-raising fraud; the other is the ICO that really engages in blockchain entrepreneurship, but it is essentially an angel investment. In an early stage, if it is conducted in a way that regulates private placement, it is understandable. However, the conventional ICO financing model is to raise funds from the public indiscriminately and may be suspected of illegally absorbing public deposits. Especially since 2017, investors in almost all projects have a typical “splitting” characteristics. Almost none of the ICO project sponsors have been properly controlled by investors, and their behavior has broken through the legal bottom line. The above two behaviors generally have the risk of suspected illegality. Therefore, the 94 "Announcement" requires that the token financing activities should be stopped immediately, and the organizations and individuals that have completed the token issuance financing should make arrangements such as clearing and retreat to properly protect the rights and interests of investors. . The protection of investor rights is an important tenet for regulators to issue an announcement to stop the ICO. [19] After the publication of the "Announcement", the market value of various tokens dropped greatly. Some tokens were cancelled in the secondary market (each virtual currency trading platform). The purpose of the regulator is to control the spread of token risk and prevent more retail investors from entering the market.

94 "Announcement" also requires that the token financing trading platform shall not engage in the exchange business between legal tender and tokens, "virtual currency", and may not buy or sell or act as a central counterparty to buy or sell tokens or "virtual currency". Currency or “virtual currency” provides services such as pricing and information brokering. The regulators called the relevant businesses of the three platforms, namely the financing platform, the token trading platform and the platform for financing and token transactions at the same time. The related trading activities include the exchange between legal tender and token, and the exchange of "virtual currency" with each other (ie "coin transaction"). [20]

Since the release of the 94 "Announcement", the ICO, which has been in the fire of China, has been rapidly "frozen". The warning effect is obvious, and the related risks are controlled in the second half of 2017. However, since the beginning of 2018, a large number of blockchain financing projects have been transferred overseas, especially in Singapore (or Switzerland, Hong Kong) and other places to set up non-profit foundations, and as the main body to launch various ICOs, once again facing Chinese residents Financing. At the same time, with the sharp drop in virtual currency market prices since January 2018, many retail investors in ICO projects and investors who bought ICO tokens on virtual currency exchanges abroad suffered heavy losses.

To this end, the China Internet Finance Association issued two "risk tips" in January 2018. On the 12th, the association issued the "Prompt Tips for Preventing Disguised ICO Activities", pointing out that a model called "Improving Virtual Digital Assets with Mines as the Core" (IMO) has gradually increased since October 2017. Related companies issue "virtual digital assets" (ie, tokens) in the IMO mode. The issuing companies actually use these tokens to replace the legal currency payment obligations for the services contributed by the participants. It is essentially a financing behavior and is a disguised ICO. [21] However, for the IMO model, the association's risk warning is too short, its definition is not defined, and no relevant reference regulations or legal basis are provided.

On the 26th, the Association issued the “Prompt on Preventing the Risk of Foreign ICO and “Virtual Currency” Trading”, pointing out that some investors turned to carry out related activities overseas, according to relevant national management policies, network access channels and payment channels of domestic investors. If affected, investors will suffer losses; the document said that the current overseas trading platform has hidden risks such as system security, market manipulation and money laundering. The document also pointed out that the association’s monitoring found that some institutions or individuals in the country are still organizing so-called currency transactions and over-the-counter transactions, and they are also used as market makers and guarantors, and their essence is still a “virtual currency” transaction. The location is clearly inconsistent with the current policy. [22] Although the China Internet Finance Association is only an industry self-regulatory organization, the various documents issued by it belong to the industry self-discipline, but the association is directly under the guidance of the People's Bank of China. The president of the association is the deputy governor of the People's Bank of China, so the association With a quasi-official color, the self-discipline charter has a huge impact on the industry, and to a certain extent represents the official will, which is worthy of attention.

In August 2018, the five ministries and commissions such as the China Banking Regulatory Commission jointly issued the “Risk Tips on Preventing Illegal Fund Raising in the Name of “Virtual Currency” and “Blockchain” (hereinafter referred to as “Risk Tips”). [23] "Risk Tips" pointed out that some lawless elements use the banner of "financial innovation" and "blockchain" to absorb funds through the issuance of so-called "virtual currency", "virtual assets" and "virtual currency", infringing on the legitimate rights and interests of the public. . "Risk Tips" also pointed out that some lawless elements also issue tokens in the name of ICO, IFO, IEO, etc., or use the IMO method to carry out virtual currency speculation under the banner of the sharing economy, which is highly concealed and deceptive. .

In September 2018, the Shanghai Headquarters of the People's Bank of China issued a notice on “Persistently Preventing ICO and Virtual Currency Trading Risks”. [24] The circular proposes that investors who report various types of ICO variants and organizations or individuals that continue to conduct ICO and virtual currency trading services to domestic residents through the deployment of overseas servers may report to the relevant regulatory authorities.

Third, the dilemma analysis of regulatory policies

Since the introduction of the series of normative documents such as the 94 Announcement and the industry self-regulation, the market has reacted extremely strongly. Previously all kinds of ICO roadshows, in the next year or so, such as yesterday's yellow flowers. A large number of ICO crowdfunding platforms stopped related business, and most project sponsors responded to the announcement instructions, actively withdrawing the token transactions on the trading platform, and preparing for returning the virtual currency such as Bitcoin to the investors in the proportion of holding the token. [25] China's financial regulators have issued risk warnings in advance, with the intention of raising public awareness of risks and staying away from the whirlpool of deception, helping Chinese residents to prevent violations of their rights in advance.

However, the above regulatory policies also have certain limitations. Since the beginning of 2018, a large number of blockchain financing projects have continued to expand their financing channels to Chinese residents through “going out to sea”. There is no difference in issuing financing projects to unspecified Chinese residents, which deviates from Chinese laws and regulations. The so-called blockchain project sponsors who live overseas, the social funds raised to Chinese residents are mostly mainstream virtual currencies such as Bitcoin or Ethereum. The project sponsors transfer social funds abroad through illegal activities. Such funds do not have to be transferred in the form of bank accounts or third-party payments, making it difficult for regulators to monitor and track violations. Most ICO projects and related foundations or their sponsors evade overseas. Once Chinese residents suffer heavy losses, they will have difficulties in obtaining evidence and investigating the difficulties of the other party (or institution). In the opinion of the author, the dilemmas of relevant policies are as follows:

(1) The dilemma of "no-coin blockchain"

In recent years, on the one hand, the Chinese central government and local governments have strongly encouraged the development of the blockchain industry. In October 2016, the Ministry of Industry and Information Technology released the “White Paper on China's Blockchain Technology and Application Development (2016)”. In December 2016, the blockchain was first published as a strategic frontier technology and disruptive technology in the State Council. Notice on Printing and Distributing the National Informationization Plan for the 13th Five-Year Plan. [26] According to the "China Blockchain Technology and Application Development Research Report (2018)" incomplete statistics, in 2017, nine provinces and cities across the country issued relevant policies and measures to support the development of blockchain industry; since 2018, the country More than 30 provincial and municipal governments have issued more than 40 policy measures, focusing on supporting the application of blockchains to drive the development of local blockchain-related industries. The attention of the Party Central Committee, the State Council, and governments at all levels has created a favorable policy environment for blockchain technology and industrial development. [27] Many local governments have opened blockchain industrial parks, or invested huge government guidance funds to promote the development of the blockchain industry. On the other hand, regulators prohibit the establishment of virtual currency exchanges in the country and the ICO's token financing for Chinese residents. The combination of legal and policy in both aspects is essentially promoting the development of the “no-coin blockchain”, that is, the regulators encourage enterprises to develop blockchain technology and applications without issuing tokens (also known as certificates). However, the connotation of the “no-coin blockchain” itself has certain contradictions. Regarding the relationship between tokens (passcards) and blockchains, as the researchers put it, “From a business perspective, the card provides incentives for blockchains, so that participants who are unfamiliar with each other cannot generate trust relationships are generated by economic interests. Linking and collaborating to establish different business ecosystems. Without the blockchain of the pass, it is difficult to mobilize the public without interest and lack of trust to participate in the ecology…. In the public chain related projects, It is a necessity to maintain the business ecology and can be used as a passport, incentive, proof of equity, a medium for value storage, and a means of payment and liquidation." [28]

Usually, coins are an incentive for blockchain systems. If the blockchain is a public chain, as a public-oriented application, it is often necessary to issue coins. As an incentive carrier, coins can attract as many developers, users and even investors as possible. Everyone is attracted to this system and is very helpful in its application development. For example, the alliance chain, for example, the blockchain built between several banks, the nodes need to be licensed before they can join, and do not need to attract developers, users or even investors to join, such business scenarios do not need coins. [29] Therefore, the concept of “no-coin blockchain” exists in the alliance chain. However, public blockchains such as the early Bitcoin blockchain system and the later Ethereum blockchain system, if there is no currency as an incentive mechanism, there will be no subsequent development. Therefore, the “coin-free blockchain” exists objectively within a limited scope, but if there is “coin” as an incentive mechanism, a complete industrial chain will be developed around the upstream and downstream of the public blockchain (such as the Bitcoin blockchain)- – Mining machine producers, miners, mining pools, programmers, Bitcoin ATMs, Bitcoin exchanges, Bitcoin financial derivatives, Bitcoin market and blockchain information media and Bitcoin wallets (software wallets or hardware wallets) ,and many more. The public blockchain is the mainstream of the entire blockchain, and there is a contradiction between the prohibition of issuing tokens and the development of the industry.

(2) The lack of qualitative knowledge of virtual currency law

The virtual currency represented by Bitcoin belongs to the new things in the past decade. In most countries, including China, there is a lack of gaps in the legal nature of virtual currency. According to the "Notice on the Prevention of Bitcoin Risk" issued by the five ministries and commissions of the People's Bank of China in 2013, Bitcoin is a virtual commodity, and individuals can legally hold and trade. [30] Article 127 of the General Principles of Civil Law makes provisions for the protection of network virtual property in a vague way, and determines the concept of “network virtual property” and the principle that network virtual property should be protected by law. However, the General Principles of Civil Law does not clearly stipulate how to protect the virtual property of the network. There is still room for further research and legislation.

Up to now, the "Notice on the Prevention of Bitcoin Risk" issued by the People's Bank of China and other five ministries in 2013 has been greatly limited. On the one hand, there are thousands of virtual currency types, which are difficult to count. Among them, there are more than 2,000 kinds of tradables in the market, [31] and still in rapid growth and evolution. The normative documents of 2013 are limited to bitcoin. It is obviously insufficient to make provisions. On the other hand, although virtual currency and so on have virtual property or virtual commodity characteristics, mainstream virtual currencies such as Bitcoin and Ethereum are increasingly showing digital currency and financial attributes. This is also the central financial supervision. An important reason for institutional involvement. In September 2017, the China Internet Finance Association issued an important document, “Tips for Preventing the Risk of Bitcoin and Other So-called “Virtual Currency””, but as an industry association, it did not characterize “virtual currency” such as Bitcoin and Litecoin. [32] In short, if only virtual currency is regarded as a virtual commodity, it will affect future regulation and legislation. For example, is it appropriate for the People's Bank of China (not the market and commercial regulatory agencies) to intervene in the supervision of “bulk virtual commodity trading”?

In 2016, the Taizhou Intermediate People's Court of Zhejiang Province identified the bitcoin as a virtual property in the criminal ruling of the second instance of the theft of Wu Mou. [33] This actually recognized the property nature of Bitcoin. Since the release of the relevant ban by Chinese financial regulators in September 2017, some courts have misunderstood and accepted adverse social impacts when accepting similar cases. When the People’s Court of Jiangning District of Nanjing Municipality tried a related case in November 2017, after consulting the aforementioned administrative normative documents, it was considered that XX currency was a specific virtual commodity and did not have the legal status equivalent to currency, citizen investment and transaction investment XX The act of illegal goods such as coins is personal freedom, but it is not protected by law. The consequences of the original defendant’s trading behavior shall be borne by itself. [34] In the absence of explicit provisions in the law, some judicial bodies have misunderstood and misdirected references to normative documents, and the results of the referee vary.

Some researchers believe that normative documents are not legally binding. When an administrative agency makes an administrative act based on or with reference to a normative document, the relative can challenge the act and propose that it has no legal basis. According to the standard of procedure, the normative document is not a law and is not binding on the court. Therefore, the court only needs to examine whether the behavior of the administrative organ has a legal basis, and does not need to consider whether the normative document exceeds the authority and whether the legislative content is specified. [35] The Announcement on Preventing the Risk of Subsidy Issuance Financing jointly issued by the seven ministries in September 2017 denied the monetary property of the virtual currency, but did not negate the virtual currency property. At present, all legal and regulatory documents do not clearly stipulate that virtual currency is illegal. Normative documents are less likely to have the authority to clarify that virtual currency is not protected by law. When the Jiangning District Court confirms that the XX currency is illegal, it should be based on formal laws and regulations, rather than applying the normative documents. The judgment of the plaintiff’s trading behavior should be borne by itself, and not the defendant’s accountability. Legal basis.

We believe that for virtual currency such as Bitcoin, legislators urgently need to clarify their legal status, effectively maintain the legitimate rights and interests of virtual currency holders, and then unify judicial understanding and judgment. Researchers in the United States believe that there are a large number of virtual currency thefts on a global scale, causing huge losses to holders. The theft of virtual currency by hackers worldwide has a serious negative impact on individual or institutional rights. In protecting the rights and interests of holders, there are dilemmas such as blockchain technology innovation, cross-border pursuit and lack of direct correspondence. To sue hackers, you can effectively deal with new issues by applying the Defend Trade Secrets Act of 2016. [36] These insights are worthy of reference by Chinese regulators and legislators.

(3) ICO's legal supervision dilemma

Only three months after the publication of the 94 Announcement, the ICO concept was once again hot, and there were many variations of ICO such as IMO, IFO and IEO. The ICO has been repeatedly hit and not killed. In addition to the extremely convenient cross-border financing characteristics of virtual currency and ICO itself, it is also inextricably linked with many shortcomings of legal supervision policies.

First, the legal concept of ICO is flawed. In the Notice issued by the Central Bank and other ministries in 2013, virtual currency such as Bitcoin was treated as a specific virtual commodity, and the financial attributes that it could use for speculation or investment were ignored in the document. The positioning of virtual goods such as Bitcoin means that Bitcoin and the like can be used for legal trading. Chinese residents can therefore obtain virtual currency through legal channels and then participate in ICO project fundraising activities. The key to combating ICO has become the development of measures to prohibit Chinese residents from buying and selling virtual currency on a large scale. However, due to the technical characteristics of point-to-point transmission of virtual currency such as Bitcoin, the prohibition of Chinese residents from buying and selling virtual currency is virtually impossible to implement.

94 "Announcement" stipulates that "submerger issuance financing refers to the illegal sale and circulation of the financing entity through the token, raising so-called 'virtual currency' such as bitcoin and Ethereum to investors, which is essentially an unauthorised illegal public financing. The act was suspected of illegally selling tokens, illegally issuing securities, and illegal criminal activities such as illegal fund-raising, financial fraud, and pyramid schemes." [37] From the above expressions, “virtual currency” and tokens have their own distinctions. Bitcoin and Ethereum raised are “virtual currencies”, and the financing entity issues tokens to investors. But in reality, the two are not completely differentiated, and even transform each other. For example, ICOCOIN (later renamed AGCO chain) uses quantum chain (QTUM) crowdfunding, and quantum chain is used for crowdfunding (ETH) crowdfunding. Therefore, the concept of “virtual currency” and token concept is not meaningful. As long as the subject of issuing tokens in China is included in the “94 Announcement”.

94 "Announcement" appeared two similar concepts of "first-time token issue" and "sub-money issue financing", and did not explain "first-time token issue". For example, the explanation of "token issue financing" cited earlier, ICO whole The process involves two legal acts: raising so-called "virtual currency" (referred to as "melting currency") such as bitcoin, Ethereum, and selling tokens to investors (referred to as "currency"). The author believes that defining ICO in these two stages is too narrow. However, this definition ignores the third behavior associated with it, that is, the token is traded on the virtual currency trading platform (referred to as "on the currency"). In short, the “virtual goods” positioning of virtual currency such as Bitcoin is insufficient, and the legal definition of ICO is too limited.

94 The "Announcement" found that ICO was essentially an illegal act of public financing without approval, and was suspected of illegally selling tokens and illegally issuing securities and other illegal activities. Of course, based on the principle of “criminal punishment for crimes”, the 94 “Announcement” can only indicate the position of the financial regulatory authorities on the ICO. In addition, the interpretation of the legislative department or the judicial department’s case determination based on the Criminal Law is not sufficient to identify the ICO. The legal basis for the crime.

In the “raising fund” phase, the ICO's most easily suspected crime is the crime of illegally absorbing public deposits or raising funds. 94 The "Announcement" found that ICO was suspected of illegal fundraising, which may not be the case. According to the 94 Announcement, ICO may have a legal form. In practice, a blockchain entrepreneurship project finances a small number of specific institutions or individuals. The institution or individual only provides virtual currency to the project party as an investment, which is similar to the traditional private placement form, except that the legal currency is replaced by virtual currency. It is difficult to identify it as illegally absorbing public deposits. Specifically, according to Article 10 of the Chinese Securities Law, it is not necessarily sufficient to have a virtual legal basis for raising a virtual currency for no more than 200 people and a specific qualified investor. Therefore, the 94 Announcement has certain obstacles to the scope of violations of laws and regulations in connection with the existing laws.

(4) Limitations of the concept of "securities" and supervision

Unlike the US Securities Law and the Howell Test, the definition and interpretation of "securities" are different. [38] China's Securities Law defines the securities relatively narrowly, strictly based on the existing Securities Law, and the tokens issued by ICO. It's hard to say that it belongs to securities. As the researchers have said, in view of the limitation of the scope of securities in the Securities Law, it is difficult for China to regulate the tokens from the perspective of securities. It is difficult to find a regulatory basis for new financial activities issued by other similar securities. The Criminal Law further limits the scope of application of securities crimes to stocks, bonds and related acts. It cannot accommodate behaviors with serious social harmfulness in new financing methods. It is necessary to improve legislation or explain them. [39] In addition to the administrative normative documents with lower effective levels and industry self-regulations, the regulatory policies in the blockchain field currently lack sufficient evidence in China. Therefore, there may be a legality crisis for regulators to crack down on illegal activities in the blockchain field. The documents issued by regulatory agencies such as “one line and two meetings” indicate that in recent years, most of the regulatory policies in the blockchain field have been fragmented, and it is urgent to establish a long-term regulatory mechanism, with special personnel responsible for coordination and handling.

China's regulation of blockchain-related financial risks has been dominated by the People's Bank of China (and the Internet Finance Remediation Office at the People's Bank of China) in recent years. Throughout the world, such as Thailand, the United States, Canada, Singapore and Hong Kong, the focus is dominated by securities regulators, issuing various administrative orders or risk warnings, prosecuting illegal exchanges, suspending illegal ICO behavior, and so on. Judging from the international practice and effect of supervision, is China currently popular with the PBOC-led regulatory and regulatory documents? Very worth thinking about.

The business nature of the virtual currency trading platform is similar to the continuous bidding model of China's securities trading. Most countries believe that mainstream virtual currency (such as bitcoin) is not of a securities nature, but its trading model on the trading platform is the same as that of securities trading. As a result, similar risks arising from business models and various violations of laws and regulations are similar. Foreign researchers further pointed out that a core issue of the virtual currency trading platform is the trust of trading customers. Regardless of whether the virtual currency traded on the exchange is of a securities nature, the problem it faces is similar to that of a securities trading intermediary. The functions of securities exchange intermediaries and virtual currency trading institutions are very similar. Regulatory requirements for securities trading intermediaries, such as investor protection rules, net assets rules, and securities investor bankruptcy bills, provide a strong regulatory framework for virtual currency trading platforms. The rules governing securities exchange intermediaries can be applied to virtual currency exchanges. Therefore, the US Securities Investment Protection Act (SIPA) and the Securities Regulatory Commission's regulatory rules on securities trading intermediaries provide a useful regulatory framework for virtual currency trading platforms. [40]

In the ICO's token issuance, some tokens promised or disguised promises to the token holders to pay dividends or obtain fixed income in the future. Such tokens are of a securities or bond nature. Since the second half of 2018, tokens with securities nature have derived the new term STO (Security Token Offerings), which is the issuance of securitization tokens. Scholars pointed out that STO is a publicly issued certificate of legal compliance in accordance with the requirements of laws, regulations and administrative regulations under a defined regulatory framework. STO is the transformation of certain financial assets or equity into a chain-encrypted digital equity certificate, which will bring many changes to asset securitization, but its application must meet several characteristics: first, it has intrinsic value; second, it is automatic compliance. And fast liquidation; third, ownership can be divided; fourth, venture capital can be democratized; fifth, assets are interoperable; sixth, its circulation can increase liquidity and market depth. [41] However, China has not yet amended the securities regulations for this type of financing. STO currently has huge legal obstacles in China. Under the premise of no approval and no certification, STO is obviously suspected of illegally raising funds or illegally distributing to the public. The legal risk of securities. At present, the US Securities and Exchange Commission (SEC) has professionally supervised STO, and there are some exemption clauses for tokens of the STO nature. In summary, tokens have two characteristics: First, the token transaction mode is similar to the securities transaction; second, part of the token is essentially a securities nature. After these tokens are put on the line, the insider trading and market manipulation behaviors are similar to the stock market. On May 13, 2018, Thailand first introduced the Royal Decree on Digital Asset Businesses BE 2561 (2018) covering the digital currency. [42] The Act is in combating illegal and criminal activities related to virtual currency transactions ( In particular, market manipulation and insider trading, almost exclusively follow the provisions of traditional securities laws. With reference to international practice, the important duties of the People's Bank of China are mainly macro-prudential supervision, the micro-business with the nature of securities-like transactions and the transfer of relevant violations to Securities regulators may be more appropriate.

(5) The dilemma of the legality of normative documents

According to common practice, legal normative documents can only be interpreted as existing laws, and new rights and obligations cannot be created. For example, the researcher believes that the normative documents can only be specific to the upper-level law, and should not create rights and obligations. If the normative documents create rights and obligations, they violate the authority of administrative legislation. [43] However, 94 “Announcement” requires that all types of token issuance financing activities should be stopped immediately from the date of this announcement. 94 The "Announcement" prohibits the illegal financing of activities through tokens. It is an interpretation and specificization of existing laws (such as combating illegal fund-raising and other relevant laws and regulations), or is not controversial. However, as mentioned above, there may be some legal forms in the financing of tokens, but they are also prohibited in the 94 Announcement. This is equivalent to creating a new obligation for the relatives, and its legality is doubtful.

Article 10 of the Administrative Enforcement Law stipulates that “other normative documents other than laws and regulations may not set administrative enforcement measures.” In practice, scholars believe that many administrative normative documents adopt mandatory methods, although for some reality.需要，但其合法性令人质疑。行政规范性文件与法的主要差异是缺乏强制性。一些必须由强制方式规定的──本属于“法”规范的事项，很多情况下却由行政规范性文件规定。这些行政规范性文件缺少立法程序的约束，制定过程相对随意，难免出现各种弊病。 【44】近年金融监管机构发布的规范性文件中，不少内容涉及禁止性规定，为一些市场主体设定了义务，这理应通过合法程序，引导民众特别是市场参与者制定规章，而非仅发布一些内容合法性存在争议的文件。

（七）变异概念的内涵界定不明

中国互联网金融协会以及中国人民银行的风险提示两度指出，要求警惕和禁止诸如IMO、IEO和IFO等ICO的变种形式。然而，在中国人民银行的行政规范性文件中，却未对这些重要概念作任何界定，这对普通人的认知、执法机构有效打击相关违法违规行为及后续正式立法造成困难。 有学者谓，【45】无论是ICO、IFO还是IMO，其落脚点都在于具有金融属性的公开发行，是非法金融活动的焦点。这类活动的盛行，再次说明当前金融科技在我国的快速发展，亟待有效的法律监管应对。【46】而在法律监管有效应对之前，上述概念、内涵及其涉及的行为首先应作准确理解和把握。我们针对ICO及其“变异”形式，结合区块链项目在不同情形融币、发币或上币的排列组合，发现其有如下表现形式：

条件一，该区块链项目仅募集了虚拟货币，并未发币和上币，此募集资金方式和传统融资形式无本质区别，只是把原本募集的资金变成虚拟货币，若认为虚拟货币属于非法集资中的“资金”范畴，则此种类型涉及的非法集资风险和传统的筹资行为并无区别。按照94《公告》对ICO的定义，代币发行融资是指融资主体通过代币的违规发售、流通，向投资者筹集比特币、以太币等所谓“虚拟货币”。在此种条件中，没有发币和流通环节，因此不属于代币发行融资，也即不属于ICO。此行为中，如果募币仅面向特定机构或者个人，那么属于私募范围，并受私募相关法律规范，94《公告》规范此种融资行为并无必要。

条件二，该项目方向投资者融币后发行了自己开发的代币，但是此种代币仅仅作为该项目方内部的产品或者服务的访问凭证，不在虚拟货币交易平台上线交易，类似于商品预售，此种条件基本符合“94《公告》”中对于ICO的定义。但是，若此项目遵守证券法的规定，募币阶段针对特定对象并且不超过200人，即便发行了此类代币，也不涉嫌证券领域的犯罪行为。

条件三 ，该项目涉及融币、发币和上币三个完整过程，其属于典型的ICO形式，融币阶段通常涉嫌向公众融资，其很难规避当前行政规范性文件及相关法律的禁止性规定，是应当取缔的非法行为。另外，部分IEO模式（Initial Exchange Offerings的缩写，意指交易平台发币，简称平台币），即交易平台发行平台币，亦存在此种嫌疑。在IEO模式中，有一部分是免费（不附加任何条件）向交易客户赠送平台币，平台币最后在本平台上线交易，这种模式基本不存在融币行为。另一部分则是附条件向交易客户“赠送”平台币，比方根据客户交易额“赠送”相应比例的平台币，或者直接向客户销售平台币（涉及融币行为），前者属于变相融币，后者则为直接融币，这两者均涉及融币、发币和上币三个完整过程，属于ICO变异形式。

条件四，此种条件是IFO（Initial Fork Offerings的缩写，意指首次分叉发行）模式的典型。对于比特币等主流虚拟货币所在的区块链强行分叉，将分叉币直接免费赠送给原虚拟货币持有人，分叉币在虚拟货币交易平台上线交易。此种条件下，并无直接募集虚拟货币的行为，但是其开发团队通过预留或预挖等形式，事先可以获得大量低成本甚至零成本的分叉币。开发团队在分叉币上线交易并推高到合适价位（如各种广告或软文等造势宣传）时出货，其成本由其他投资者买单，属于变相融币，因此，成为ICO变异形式之一。

条件五，这种条件属于IMO（Initial Miner Offerings的缩写，意指矿机销售为核心发行虚拟代币），项目方向投资者销售智能硬件（矿机）获取资金，按传统观点视之，这似乎属于商品买卖行为。投资人购得智能硬件后可以“挖矿”，即启动“发币”过程。之后，虽然个别项目方在公开声明中反对上币。但实际上，投资人购买矿机，主要目的在于获取代币，以便在交易所买卖和投资（投机）获利。项目方表面上作出的声明并不能阻止代币上线交易所。事实上代币上线交易所并被热炒后，反过来有助于项目方矿机的销售。

综上，笔者认为，将来出台新的法律监管政策，宜针对上述既有政策存在的困境，进行有针对性的调整和弥补（巴比特）

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