区块链金融衍生品刑法规制研究

区块链技术自产生之日就与金融有着密切联系,其作为一种全新技术组合,正渗透到不同金融场景中。区块链技术发展改变了传统金融运营模式,冲击了金融风险管控和现有法律体系。区块链金融衍生品的高度匿名性与去中心化交易,使监管机构搜集信息受阻,难以确保信息准确性和全面性,导致出现部分业态下监管真空,为犯罪发生提供了土壤。对区块链金融衍生品进行刑法规制能维持国家货币稳定,防范金融风险,预防诱发犯罪,有其必要性。区块链金融衍生品在刑法上定性有货币说、金融工具说和财产说。通过比较德、美、日、俄国家对区块链金融衍生品的法律政策,结合国内区块链金融衍生品交易实践,其主要是作为金融工具在使用,因此把区块链金融衍生品认定为金融工具较为科学。区块链金融衍生品交易涉及金融交易安全、金融管理秩序安全和金融投资人财产安全等刑法法益,只有以刑事政策为引领立足现实展望未来,以刑事法律为基础坚持防控风险和推动技术发展相结合,以刑事合规为辅助建立刑罚与非刑罚相贯通的体制机制,打造立体规制体系,才能防范区块链金融衍生品交易犯罪,促使其在法治轨道上健康发展。

Research oncriminal law regulation of financial derivatives in blockchain

Blockchain technology has been closely related to finance since it came into being. As a new technical combination, it is penetrating into different financial scenarios. The development of blockchain has changed the traditional financial operating model, and greatly impacted the financial risk management and the existing legal system. The high degree of anonymity and decentralized trading of financial derivatives in blockchain hinders the collection of information by regulators, makes it difficult to ensure the accuracy and comprehensiveness of information, thus leads to a regulatory gap in some industries, and makes room for crime. Therefore, the criminal law regulation on financial derivatives can maintain the stability of the national currency, guard against financial risks, and prevent induced crime, which is necessary. In blockchain, there are three theories about the attributes of the financial derivatives of blockchain: being currency, being financial instrument and being property. By comparing the legal policies of blockchain financial derivatives in Germany, the United States, Japan and Russia, combined with domestic blockchain financial derivatives trading practice, it is mainly used as financial instruments, so it sounds more reasonable to identify blockchain financial derivatives as financial instruments. Financial derivatives trading in blockchain involves criminal law interests such as the security of financial transactions and financial management and the property security of financial investors. We can prevent the crime of financial derivatives trading in blockchain and promote its healthy development on the track of the rule of law only by taking criminal policies as the guidance, basing on reality and looking forward to the future, taking criminal laws as the basis, persisting in the combination of prevention and control risks and promoting technological development, taking criminal compliance as the assistance, establishing a system and mechanism of punishment and non-punishment, and building a three-dimensional regulation system.