区块链技术下ICO行为的风险研判及刑法规制

作为区块链技术的载体和应用产物，ICO在发挥现代商业拉动经济模式转变的同时也滋生许多新型违法犯罪活动。传统刑法理论和刑事立法对基于区块链技术的ICO行为采取“一刀切”式的限制立场，这将导致传统刑法理论和法条规则与新型网络信息技术的关系日益紧张。面对基于区块链技术的ICO行为，传统刑法的理论和立法在虚拟货币的法律地位、ICO行为法律属性的解读、ICO与其他犯罪行为的分界等方面都未加以明确。中国对基于区块链技术的ICO行为的刑法创新规制宜进一步突出对“募集对象”的规制路径；以非法经营罪作为刑法规制ICO行为的兜底条款；并结合司法实践的具体情形分别进行刑法认定，以完善ICO相关的法律法规的立法工作。

Risk Study of ICO Behavior under Block Chain Technology and Its Criminal Law Regulation

Being the carrier and application product of block chain technology, ICO brings forth many new illegal and criminal activities while playing the role of modern business-driven economic model transformation. Traditional criminal law theories and criminal legislation take a "one-size-for-all" prohibition stance against ICO based on block chain technology, which will lead to an increasingly tense relationship between traditional criminal law theories, rules and novel network information technology. In the face of ICO behaviors based on block chain technology, traditional criminal law theories and legislation are particularly limited in terms of the legal status of virtual currency and the interpretation of the legal properties of ICO behaviors, and the boundary between ICO and other criminal behaviors. China's innovation regulation of criminal law for ICO behavior should further the regulation of collecting objects, take the crime of illegal business operation as the backstop clause of ICO behavior regulated by criminal law, and confirm the criminal law according to the specific situation, i.e. using fraudulent means to defraud public deposits or MLM, so as to improve the laws and regulations related to ICO.