Deng Jianpeng: Comprehensive thinking on the predicament 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]

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.

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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. Need, but its legitimacy is questionable. The main difference between administrative normative documents and law is the lack of compulsory. Some things that must be stipulated by the mandatory method – which are the "law" norms, are in many cases stipulated by administrative normative documents. These administrative normative documents lack the legislative procedures, and the formulation process is relatively random, and various ills are inevitable. [44] In the normative documents issued by financial regulators in recent years, many of them contain prohibitive provisions, which set obligations for some market entities. This should be guided by legal procedures to guide people, especially market participants, to formulate regulations, not just Issue some documents in which the content is legally controversial.

(7) The definition of the concept of variation is unclear

The China Internet Finance Association and the People's Bank of China's risk tips have twice pointed out that they need to be vigilant and prohibit variants of ICO such as IMO, IEO and IFO. However, in the administrative normative documents of the People's Bank of China, these important concepts have not been defined. This makes it difficult for ordinary people's cognition and law enforcement agencies to effectively crack down on relevant violations and follow-up formal legislation. Some scholars say that [45] whether it is ICO, IFO or IMO, its foothold lies in the public issuance of financial attributes, which is the focus of illegal financial activities. The prevalence of such activities once again illustrates the rapid development of current financial technology in China and the urgent need for effective legal supervision. [46] Before the legal supervision is effectively dealt with, the above concepts, connotations and the behaviors involved should be accurately understood and grasped first. For the ICO and its "variation" form, combined with the blockchain project in different situations, the combination of the currency, the currency or the upper currency is found to have the following manifestations:

Blockchain project in different conditions of the form of the blockchain project at different stages Condition 1 Condition 2 Condition 3 Condition 4 Condition 5 Whether the coin is Yes Yes No No No coin No Yes Yes Yes Yes Yes No Yes No No Yes Yes No

Condition 1, the blockchain project only raises the virtual currency, and does not issue the currency and the foreign currency. The method of raising funds is not fundamentally different from the traditional financing form, but the original raised funds become virtual currency, if the virtual currency is considered In the category of “funding” in illegal fund-raising, there is no difference between the illegal fund-raising risk involved in this type and the traditional fund-raising behavior. According to the definition of ICO in the 94 Announcement, the financing of the issuance of the token refers to the so-called “virtual currency” such as Bitcoin and Ethereum raised by the financing entity through the illegal sale and circulation of the token. Under such conditions, there is no currency issue and circulation, so it is not part of the token issuance financing, that is, it is not part of the ICO. In this behavior, if the funds are only for a specific institution or individual, then it is privately funded and subject to the relevant laws and regulations of private placement. 94 The “Announcement” regulates such financing activities is not necessary.

Condition 2: The project issues its own developed tokens after the investor has melted the currency, but the token is only used as an access certificate for the product or service within the project party, and is not traded on the virtual currency trading platform, similar to the commodity pre-order. For sale, such conditions are basically in line with the definition of ICO in the “94 Announcement”. However, if the project complies with the provisions of the Securities Law, the fundraising phase is targeted at specific targets and no more than 200 people, even if such tokens are issued, it is not suspected of criminal acts in the securities field.

Condition 3, the project involves three complete processes of coinage, currency and on-coin. It is a typical ICO form. The coin phase is usually suspected of financing the public. It is difficult to circumvent the current administrative normative documents and the prohibition of relevant laws. The stipulation is an illegal act that should be banned. In addition, some IEO models (abbreviation of Initial Exchange Offerings, meaning trading platform, referred to as platform currency), that is, trading platform publishing platform currency, also have such suspicions. In the IEO model, part of it is free (without any conditions) to give platform customers a platform currency, and the platform currency is finally traded on the platform. There is basically no coin-linking behavior in this mode. The other part is to conditionally “give” the platform currency to the trading customer, for example, “give” the corresponding proportion of the platform currency according to the customer transaction amount, or directly sell the platform currency to the customer (involving the coin transaction), the former belongs to the disguised coin, and then The person is a direct coin, both of which involve three complete processes of coin, coin and coin, which belong to the ICO variant form.

Condition four, this condition is typical of the IFO (abbreviation of Initial Fork Offerings, meaning the first forked release) model. For the blockchain where the mainstream virtual currency such as Bitcoin is forcibly forked, the forked currency is directly given to the original virtual currency holder for free, and the forked currency is traded on the virtual currency trading platform. Under such conditions, there is no direct recruitment of virtual currency, but its development team can obtain a large number of low-cost or even zero-cost forks in advance through reservation or pre-digging. The development team ships the forked coin online and pushes it up to the appropriate price (such as various advertisements or soft texts). The cost is paid by other investors, which is a disguised coin, so it becomes one of the ICO variants. .

Condition 5, this condition belongs to IMO (abbreviation of Initial Miner Offerings, which means that the mining machine sales are the core issuing virtual token), and the project leads investors to sell smart hardware (mine machine) to obtain funds. According to the traditional point of view, this seems to Belongs to the sale of goods. After the investor purchases the intelligent hardware, he can “mining the mine”, that is, the “currency” process is started. Later, although individual project parties opposed the currency in the public statement. But in fact, the main purpose of investors buying mineral machines is to obtain tokens in order to make profits on exchanges and investments (speculation). The statement made on the surface of the project does not prevent the token from going online. In fact, the on-line exchanges were hotly fired, which in turn helped the sales of the project side mining machines.

In summary, the author believes that in the future, a new legal supervision policy should be introduced, and it is appropriate to make targeted adjustments and make up for the predicament of the above-mentioned existing policies.

Quote: 1.See Trevor I. Kiviat, "Beyond Bitcoin: Issues in Regulating Blockchain Transactions", in Duke Law Journal, Vol. 65, No. 3 (Dec 2015), p574. 2. Quoted from Zhang Jian: “Blockchain: Defining the Future of New Financial and Economic Patterns”, Mechanical Industry Press, 2016, pp. 200-201. 3. See Wu Tong and Li Jiaxuan: “Study on the Integration and Development of Blockchain and Finance”, in Financial Research Research, No. 12, 2018. 4. See Zhang Jian: “Blockchain: Defining the Future of New Financial and Economic Patterns”, Mechanical Industry Press, 2016, pp. 101-152. 5. China Blockchain Technology and Industry Development Forum (eds.): China Blockchain Technology and Application Development Research Report (2018), page 23, published on December 18, 2018, uploading website http://www .doc88.com/p-9425011294243.html, visit time: January 10, 2019. 6. See Shenzhen Qianhai Jude Internet Finance Research Institute (editor): Blockchain Finance, CITIC Publishing House, 1st edition, 2016. 7.See Trevor I. Kiviat, "Beyond Bitcoin: Issues in Regulating Blockchain Transactions", in Duke Law Journal, Vol. 65, No. 3 (Dec 2015), p589. 8. See [United States] Kevin Wörbach: "Trust, but need to verify: Why the blockchain needs the law", translated by Lin Shaowei, in "East Methodology", No. 4, 2018. 9. See Li Wenhong, Jiang Zeshen: “Research on the Development and Supervision of Distributed Accounts, Blockchains and Digital Money”, in Financial Management Research, No. 6 of 2018. 10. The above is the area where the current blockchain related risks are concentrated. In other respects, the blockchain also brings risks and challenges to the current law, such as blockchain + traditional securities, but this is more of a future. For related research, see Wan Guohua, Sun Ting: “Securities Blockchain Finance: Market Change, Legal Challenges and Regulatory Responses”, in Law Application, No. 23, 2018. 11. Li Fuying: "Suggestions on Strengthening the Supervision of Administrative Normative Documents", in Administrative Law Research, No. 5, 2015. 12. See https://www.ifcert.org.cn/res/web_file/1501062824386085029.pdf, visit time: January 1, 2019; Deng Jianpeng: "Interpretation and Reflection on the ICO Announcement of the Seven Ministries", "Securities Daily News, September 9, 2017, version A03. 13. Deng Jianpeng: "Interpretation and Reflection of the Seventh Ministries on ICO Announcement", in Securities Daily, September 9, 2017, A03. 14.See Adrian Parlow, Securities Liability and the Role of D&O Insurance in Regulating Initial Coin Offerings, Vol 167 U.Pa. L. Rev. 211 (2018), p213. 15. See, http://www.cbrc.gov .cn/chinese/home/docView/BE5842392CFF4BD98B0F3DC9C2A4C540.html, visit time: January 1, 2019; Deng Jianpeng: "Interpretation and reflection of the seven ministries and commissions on ICO announcement", "Securities Daily" September 9, 2017, A03 version. 16. Zhu Juan: “Legal Regulation of Blockchain Finance in China—Based on the Perspective of Smart Supervision”, in Law No. 11 of 2018. 17. Deng Jianpeng: “Interpretation and Reflection of the ICO Announcement of the Seven Ministries and Commissions”, in Securities Daily, September 9, 2017, A03. 18. For a detailed discussion, see Deng Jianpeng: "Legal Thinking on ICO Illegal Fund Raising Issues", in "Jinan Journal" (Philosophy and Social Sciences Edition), No. 8 of 2018; Deng Jianpeng: "Interpretation and Reflection of the Seven Subcommittees on ICO Announcement", Securities Daily, September 9, 2017, version A03. 19. See Deng Jianpeng: “Interpretation and Reflection of the ICO Announcement of the Seven Ministries”, in Securities Daily, September 9, 2017, A03. 20. See Deng Jianpeng: “Interpretation and Reflection on the ICO Announcement of the Seven Ministries”, in Securities Daily, September 9, 2017, A03. 21. See http://www.nifa.org.cn/nifa/2955704/2955770/2970213/index.html, visit time: January 1, 2019. 22. See http://www.nifa.org.cn/nifa/2955704/2955770/2970365/index.html, visit time: January 1, 2019. 23. See http://www.cbrc.gov.cn/chinese/newShouDoc/02DD1CADB1AC45DF948E3AD36F93BEDD.html, visit time: January 1, 2019. 24. See http://www.bjnews.com.cn/finance/2018/09/18/505995.html, visit time: January 1, 2019. 25. See Deng Jianpeng: “Interpretation and Reflection of the ICO Announcement of the Seven Ministries”, in Securities Daily, September 9, 2017, A03. 26. Other local blockchain industry policy guidance documents are summarized, see https://www.8btc.com/article/147131, visit time: January 6, 2019. 27. China Blockchain Technology and Industry Development Forum (eds.): China Blockchain Technology and Application Development Research Report (2018), page 3, released on December 18, 2018, uploading website http://www .doc88.com/p-9425011294243.html, visit time: January 10, 2019. 28. See Yang Anran, Huang Lejun: “Blockchain and General: Redefining the Future of Business Ecology”, Mechanical Industry Press, 2018, pp. 4, 29. 29. Blockchain platforms are usually divided into public chains and alliance chains. Any node in the public chain can freely join the network or exit, allowing any user to participate in the transaction. All the books are transparent and protected by multiple parties. The nodes in the alliance chain must be authorized to join, and the nodes are mostly commercial organizations. The nodes of the public chain are usually anonymous, and the federation chain needs to provide member management services to audit the identity of the nodes. See Shao Qifeng, Jin Cheqing, Zhang Zhao, Qian Weining, Zhou Aoying, “Blockchain Technology: Architecture and Progress”, in Computer Journal, No. 5, 2018. 30. For related regulations, see Deng Jianpeng, Huang Zhen, “Internet Finance Law and Risk Control”, Mechanical Industry Press, 2nd edition, 2017, p. 260; Deng Jianpeng: “Interpretation and Reflection of the Seven Subcommittees on ICO Announcement”, Daily News, September 9, 2017, version A03. According to the statistics of professional websites, the number of tradable virtual currencies currently available on the market is as high as 2016. For data, see https://coinmarketcap.com/zh/, visit time: March 18, 2019. 32. See http://www.nifa.org.cn/nifa/2955704/2955770/2967733/index.html, visit time: January 1, 2019. 33. Taizhou Intermediate People's Court of Zhejiang Province (2016) Judgment of 1010 Criminal End of Zhejiang Province. 34. Nanjing Jiangning District People's Court (2017) Su 0115 Minchu 15868 judgment. 35. Wang Liuyi: On the Standards for Differentiation between Administrative Legislation and Administrative Normative Documents, in Politics and Law, No. 6 of 2018. 36. See Gregory Bischoping, Prosecuting Cryptocurrency Theft with the Defend Trade Secrets Act of 2016, Vol 167 U. Pa. L. Rev. 239-259 (2018). 37. See Deng Jianpeng: “Financial Risk and Legal Analysis of the IMO Model”, in Bank of America, No. 11 of 2018. 38. The applicable analysis of the definition of “Hoowei test” and “securities” under the US law in the field of virtual currency, see Deng Jianpeng, Sun Penglei: “Analysis of Virtual Tokens in the Perspective of American Law——Taking Ethereum as an Example” The Banker, No. 8 of 2018. A discussion on whether the issue of tokens is of a securities nature is described in the “Hooway Test” approach by the US securities regulator SEC. See Adrian Parlow, Securities Liability and the Role of D&O Insurance in Regulating Initial Coin Offerings, Vol. 167 U.Pa. L. Rev. 221-223 (2018). 39. See Zhu Xi: “Criminal Risks in Token Issuance Transactions”, in Journal of the State Prosecutor's College, 2018. 40.See Dennis Chu, "Broker-Dealers for Virtual Currency: Regulating Cryptocurrency Wallets and Exchanges", in Columbia Law Review, Vol. 118, No. 8 (Dec 2018), pp. 2323-2360. 41. Li Honghan: "STO, a new sociological experiment", "Modern Commercial Bank", No. 21, 2018. 42. See https://www.sec.or.th/EN/SECInfo/LawsRegulation/Documents/actandroyal/digitalasset_decree_2561_EN.pdf, visit time: December 30, 2018. 43. Wang Liuyi: On the Standards for Differentiation between Administrative Legislation and Administrative Normative Documents, in Politics and Law, No. 6 of 2018. 44. Sun Shoucan: “On the Authority of Administrative Normative Documents”, in China Administrative Management, No. 8 of 2016. 45. For a detailed legal analysis of the IMO model, see Deng Jianpeng: “Financial Risk and Legal Analysis of the IMO Model”, in Bank of America, No. 11 of 2018. 46. ​​Wu Yanni, “Legal Challenges and Supervision of Frontier Applications of Financial Technology: Perspectives of Blockchain and Regulatory Technology”, in Journal of Dalian University of Technology (Social Science Edition), No. 3, 2018.

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