| Digital currency is a typical disruptive innovation financing tool driven by blockchain technology.It has become a widely accepted and recognized financial asset because of its advantages of high transaction liquidity and wide range of financing.Tokens for the first time issued for technology-based start-ups broaden the financing channels at the same time,because of its characteristics of heterogeneous technologies and trading structure,impact of financial regulation and disturbing the order of financial market risk,it is necessary to include legal regulation,effectively reduce the embedded digital tokens issue behind the cost and risk factors,to protect the interests of the financial market stability and investors.The premise of legal regulation is classification and qualitative.Digital currencies can be divided into digital COINS that act as general equivalents and digital tokens that play a major role in financing.Digital tokens can be divided into security,application and payment types according to their economic essence and different application scenarios.Facing the impact of new financial instruments on the traditional capital market,how to balance the risk control and encourage innovation in the issuance and transaction of digital assets is a common problem faced by financial regulators of all countries.SEC as pioneer of digital tokens,supervision,follow the principle of essence greater than form,through the economic essence of digital tokens,combined with the specific application scenario,through Howey Test framework from money investment,joint management and profit expectations and totally dependent on the efforts of others and so on four aspects discusses the judgment standard of investment contract,on the basis of case analysis of flexible rather than statically identification number tokens of securities attributes,and through the digital assets investment contract analysis framework for the securities law of 1933 and its related cases the problem of insufficient explanatory power in front of new financial instruments,Gradually formed a set of more targeted and universal digital token federal securities law regulatory framework.The first-class capital market cannot leave the first-class financial supervision,the first-class supervision serves the system construction,stands in the technological progress.Based on the support of mature capital market system and complete financial legal system,American regulation shows a high degree of inclusiveness to the innovation of fintech.It makes use of the issuance registration system and exemption safe haven to give play to the financing advantages brought by the underlying technology of initial token issuance and unleash the development potential of digital token scale market.Through the establishment of Finhub and the holding of hearings and close communication and cooperation with enterprises,listen to the interests of all parties and facilitate the regulatory agreement.Digital currency regulation policies and administrative law enforcement in our country to carry out stringent regulations idea,banned in all digital tokens,issuance and trading,but improper movement type under the governance of domestic market is still active with numerous tokens to evade regulation of secondary market trading platform and illegal investment consumers,regulatory vacuum for protection of the rights and interests of consumers at risk.At the same time,the one-size-fits-all prohibition model under regulated financial supervision ignores the financing problems of small,medium and micro start-ups and investors' demand for diversified investment channels.In addition,due to the narrow and rigid definition of securities,the securities law in China is not adaptable and cannot provide legal supply for the enforcement actions of regulators.The lack of legislation makes ICO fall into the dilemma of law application.The securities regulatory practice of the SEC has provided a relatively mature reference sample for China,which is of enlightening significance to the balance between financial innovation and market protection in China's financial regulation and the exploration experience of digital token as a new financing tool in the technical means,the implied risks and the regulatory path.We should start with improving the basic system construction of digital token exchange market,establish the regulation concept of penetrative supervision and flexible supervision in technology,and reserve the innovation space for the development of digital token.At the same time,promote the beneficial combination of fintech and regulatory technology,and use innovative regulatory tools to tackle the fintech problems in the 21st century.The core is to define the legal nature of digital currency to give investors certain regulatory expectations and create a stable and orderly market environment.The definition of securities is further expanded,a clear legal boundary is drawn to distinguish securities tokens,and a relatively mature exemption from crowdfunding is designed as an institutional arrangement to guide ICO compliance.We should also strengthen investor education to protect their legitimate rights and interests and cultivate mature and rational financial consumers.Finally,a well-developed,healthy and orderly digital token exchange market with mature supervision will be formed. |
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