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Who is the legal depression? Comparing the regulatory countermeasures of virtual currencies in various countries



In China, when it comes to the supervision of virtual currencies such as Bitcoin, it is almost always called "289 Documents" and "9.4 Documents". The latter refers to the "Announcement on Preventing Financing Risks of Token Issuance" issued by the People's Bank of China and others on September 4, 2017. These two departmental regulations are almost the only official documents that can give a glimpse of the attitude of Chinese regulators towards virtual currencies such as Bitcoin. Legal research often pays attention to comparative research methods. Virtual currency regulation is so in China, so what about foreign countries? The following Sister Sa's team specially selects the supervision situation of the United States, Singapore, Japan, Germany, Switzerland, the United Kingdom and other countries to share with readers. 1. The U.S. The supervision of digital currency in the United States is relatively complicated, and there is no unified and clear understanding. Different regulatory authorities may make different characterizations for different digital currencies in order to include them in their own regulatory scope. There is a kind of "everyone Want to manage" situation. The U.S. Department of the Treasury considers that virtual currency is also a currency, so all virtual currency exchanges must apply to its Financial Crimes Enforcement Network (FinCEN) to register for an MSB license (Money Service Business). The U.S. Commodity Futures Trading Commission (CFTC) considers Bitcoin futures to be a commodity. In December 2017, the Chicago Mercantile Exchange (CME) launched bitcoin futures contract trading. The Alameda Research address transferred 2.49 HBTC to Binance: On December 14th, Paidun monitoring data showed that the address marked "Alameda Research: Binance Deposit" transferred 2.49 Huobi BTC (HBTC) to Binance, worth $44,434.20. [2022/12/15 21:45:21] The U.S. Internal Revenue Service (IRS) recognizes bitcoin and other virtual currencies as property rather than currency, and it will levy value-added tax on transactions between bitcoin and other virtual currencies, and establish The team specializes in combating tax evasion in virtual currency transactions. After seeing the popularity of the ICO market, the U.S. Securities and Exchange Commission (SEC) believes that some virtual currency ICOs that can pass the Howey test (Howey test) are securities issuances, which need to be registered with the SEC and subject to the "Securities Act" and "Securities Exchange Act". " and other legal supervision. The so-called Howey test is a standard used by the US court in a judgment (SEC v. Howey) as early as 1946 to judge whether a specific transaction constitutes a securities issuance. The specific criteria include: (1) Whether it is money (money) (2) Whether the investment is expected to generate profits; (3) Whether the investment is aimed at a specific business (common enterprise), that is, whether there is a project party; (4) Whether the generation of benefits comes from the issuer or third-person efforts. South Korean game giant WeMade launches cryptocurrency "Reflect" and pledge service "Stake 360": On July 15th, South Korean game giant WeMade announced that it will launch the cryptocurrency Reflect and the pledge service Stake 360 based on Reflect and Wemix. According to reports, the Reflect token is a synthetic virtual asset designed to revitalize the game economy in the blockchain game platform WEMIX PLAY and integrate various game tokens. Reflect can be synthesized through multiple tokens in various games provided by the chain game platform Wemix Play, and can also be broken down into these game tokens. Stake360 pledge service has a pledge limit of 10 million Wemix per period, and will pay 200,000 (90 days), 500,000 (180 days), 1.1 million (270 days), and 2 million (360 days) Wemix as compensation. (News 1) [2022/7/15 2:15:55] Among these four standards, the standard of "Money" is constantly expanding. In 2013, a US court ruled that Bitcoin has the attributes of Money (SEC v. Trendon T. Shavers & Bitcoin Sav. & Tr.). Therefore, even an ICO that only absorbs virtual currencies such as Bitcoin for financing is likely to be considered by the SEC as a securities offering and subject to stricter supervision. MicroStrategy Chief Financial Officer: Despite the market plunge, MicroStrategy will continue to buy Bitcoin: According to news on January 25, MicroStrategy Chief Financial Officer Phong Le said that our strategy for Bitcoin is to buy and hold, so if we have excess Cash flow or we find other ways to raise funds, we will continue to put it into Bitcoin. MicroStrategy will continue to buy bitcoin this year, but it's unclear if it will buy more than last year; the company has no plans to sell the asset. MicroStrategy is also considering buying bitcoin-backed bonds in the next year or two should the market become more liquid. The company is scheduled to report fourth-quarter earnings on Feb. 1. (WSJ) [2022/1/25 9:12:07] 2. Singapore In November 2017, the Monetary Authority of Singapore (MAS) issued "A Guide to Digital Token Offerings" (A Guide to Digital Token Offerings), which pointed out in the document , if the digital token is recognized as a product that should be regulated by the Singapore Securities Law (that is, capital market products), the sale or issuance of the digital token needs to comply with the existing Singapore Securities and Futures Act (SFA, Security Future Act). Unlike the definition of securities in the United States, which may be "all-encompassing", Singapore's definition of "capital market products" is relatively narrow. According to Article 2 of Singapore's "Securities and Futures Act", "capital market products" refers to securities, futures contracts, Contracts and arrangements for foreign exchange transactions (including leveraged transactions) and financial products specially designated by MAS. In other words, most virtual currencies will be identified as non-capital market products. Further, the MAS has essentially given the green light to the issuance of virtual currencies as most non-capital market products. Guo Taiming: Virtual currency is a fake issue, and currency will never be decentralized: According to news on December 4, Gou Taiming, the founder of Hon Hai, said in an interview, "Virtual currency can never be decentralized, so the central bank should not open it." , Virtual currency is a fake issue, and only the underground economy will use virtual currency." Guo Taiming also said that the concept of decentralization is still very important when applied to industrial production and health information. (Sina News) [2021/12/4 12:51:01] On September 19, 2018, at the Singapore station of the CoinDesk Consensus Conference, Damien Pang, director of the Technology Infrastructure Division (TIO) of the MAS Financial Technology and Innovation Group, said: MAS At present, tokens are divided into three categories: application tokens, payment tokens and securities tokens. In terms of supervision, MAS does not plan to supervise application tokens, but for payment tokens, MAS expects to formulate a payment service bill to apply tokens with storage and payment value. As for security tokens, it applies to the existing "Securities Futures Act" (SFA, Security Future Act). On January 14, 2019, the "Payment Service Act" (Payment Service Act) was reviewed and passed by the Singaporean Parliament, which clarified the supervision of the payment token business. The bill stipulates that virtual currency exchanges, OTC platforms, wallets, etc. are Payment token service providers need to meet relevant anti-money laundering regulations and apply for corresponding licenses. The total transaction volume of Deri Protocol exceeded 10 billion US dollars: Deri Protocol, a decentralized derivatives agreement, tweeted that the total transaction volume has now exceeded 10 billion US dollars. [2021/11/27 12:35:31] 3. Japan On April 1, 2017, Japan's "Payment Services Amendment Act" came into effect. This is the first bill in the world to formally bring virtual currency into regulation at the legislative level. The legality of some virtual currencies as a means of payment has been officially recognized, and the virtual currency exchange business has been regulated. In the bill, virtual currency is defined as "a property value calculated in legal tender and processed through an electronic system that can be transferred between different subjects or pay off debts." In March 2019, Japan revised the "Payment Service Law". " and the "Financial Instruments Exchange Law", the original term "virtual currency" was changed to "encrypted assets". The cryptocurrency exchange institution must be a joint-stock company registered with the Financial Services Agency. After registration, it must perform obligations such as information security management, information disclosure, asset separation management (separate management of its own assets and user assets), and regular submission of business reports. Regarding ICO behavior, if the tokens issued are considered to have the nature of securities, that is, the so-called investment ICO, it will be included in the strong supervision of the "Financial Instruments Exchange Law", and various registrations must be obtained in accordance with relevant regulations. Issuers should also disclose necessary information and regulate advertising and sales. In September 2019, the Digital Currency Exchange Industry Association under the Financial Services Agency of Japan promulgated the "Regulations Related to New Currency Offerings" and "Guidelines on Rules Concerning New Currency Offerings", which put forward higher regulatory requirements for digital currency exchanges. In general, Japan has high compliance requirements for the digital currency industry, and project fundraising and transactions are more difficult. As a result, although Japan has not denied the legitimacy of ICO after the amendment of the law, in fact, few projects have issued for a long time. success. 4. Germany Germany is the first country in the world to recognize the legality of Bitcoin. However, Germany has not promulgated special laws for virtual currency, but divides it into different types according to the business scenarios and application characteristics of digital currency for differentiated supervision, that is, virtual currency is included in the existing legal system for classified supervision. In August 2013, the German Ministry of Finance stated in response to an inquiry from Frank Schaeffler, a property expert of the Liberal Democratic Party, that it had officially recognized Bitcoin as a "currency unit" (Currency Unit) and a "private asset". (Private Money). In September 2018, the German Federal Financial Supervisory Authority released the "Regulatory Report on Blockchain Technology", which divided digital currencies into three categories: one is payment tokens (Payment Tokens), similar to Bitcoin, which refers to A payment method used to purchase goods or services, or a value transfer method, which has no value in itself and is only used as a payment method to undertake the function of liquidation or settlement. If you use payment tokens for payment in commodity transactions, or build a token trading platform, you must apply to the German Financial Administration in accordance with the German Banking Act. At the same time, as a provider of financial instruments, it is also bound by the German "Anti-Money Laundering Law" and needs to comply with the following four aspects: first, do due diligence on customers; second, implement customer identity information and transaction preservation systems; third, Establish and improve the internal anti-money laundering control system; the fourth is to establish and implement a large-value transaction and suspicious transaction reporting system. The second is security tokens (Security Tokens), including equity tokens and other capital tokens, whose holders have ownership of specific assets, equity and debt instruments, and will promise future company earnings or profits to investors, so their Functionally similar to securities, bonds or other financial derivatives. According to Article 2, Paragraph 1 of the German Securities Exchange Act, a class of virtual currencies must meet the following four conditions to be recognized as securities: first, the transferability of tokens; second, the transferability of tokens in the financial market or capital market Circulation (the token trading platform can be regarded as the financial or capital market in this definition); the third is the embodiment of rights in the token, that is, token holders have the right to claim similar rights such as shareholder rights or creditor's rights; The fourth is to meet the standards as a payment tool. Regarding whether tokens meet the above four types of standards, the German Financial Administration adopts a case-by-case review method, and there is no unified answer. The third is Utility Token. The German Financial Supervisory Authority believes that this type of currency is only used in the issuer's own network system and is relatively closed. It is to grant its users the right to use its products or services through blockchain technology. . For a single functional token, it does not have financial attributes in essence and is not included in the supervision of relevant German financial laws. However, functional tokens may be endowed with the functions of payment tokens and security tokens, and will be regulated in accordance with relevant regulatory requirements. 5. Switzerland In April 2018, the Swiss Financial Market Authority (FINMA) issued guidelines. According to the basic use of tokens and whether they can be traded, it divides tokens into three categories: one is payment tokens, that is, digital encrypted currency; The second is functional tokens; the third is asset tokens. FINMA believes that payment-type tokens do not constitute a financing method; asset-type tokens constitute securities, and securities regulatory rules need to be adopted for them. FINMA has not clarified what regulatory rules apply to the sale of functional tokens, but it has clearly pointed out that functional tokens are not securities, and the regulatory rules for securities do not apply. 6. United Kingdom In January 2019, the Financial Conduct Authority (FCA) of the United Kingdom released the "Guidelines for Cryptocurrency Assets", in which it also divided cryptocurrencies into three types. Among them, transactional tokens such as Bitcoin and Litecoin can be used to buy and sell goods and services without going through a bank; security tokens should be regulated; utility tokens other than electronic money are not regulated. Written at the end Looking at the supervision of virtual currencies in several countries listed in this article, it is not difficult to find that all countries are trying to make a clearer classification of virtual currencies, so as to incorporate different types of virtual currencies into the existing regulatory system , to meet the regulatory requirements at different levels such as anti-money laundering and anti-financial fraud. Some countries also maintain a certain consistency in the classification of virtual currency, which is divided into payment tokens, security tokens and functional tokens.


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