区块链金融的刑法风险与规则之治

区块链技术的特征，一方面奠定了其在金融这一文明社会重要基石中的应用可能性，另一方面也为区块链金融活动中的不法风险埋下了线索。基于区块链技术的实际金融应用场景，区块链技术在金融领域之应用的不法风险，首要体现为以加密货币为基础的区块链金融生态对于骗购外汇类犯罪与洗钱犯罪的助推。区块链ICO等中心化金融活动，更是带来了诸如内幕交易类犯罪、金融诈骗犯罪等扰乱金融秩序的不法风险。区块链技术的进一步发展和应用，还催生出基于智能合约的去中心化场景下的犯罪形态。思考区块链金融犯罪的规则之治，现行法规范的缺乏与区块链技术的风险内生性，共同导致了相关犯罪的认定困难。因此，为了更好地应对区块链金融领域的刑法风险，需要遵循内外有别的原则来对相关风险加以规制。就外部视角而言，为了将区块链金融犯罪纳入刑事法治的轨道，首先必须重新评估加密货币的刑法定性。对此，应当区分不同加密货币的性质来分情况讨论。同时，还需对区块链技术发展主体的法律地位予以明确，合理界定相关区块链企业的平台责任及监管方式。应当反思当前“一刀切”的监管方式，采用带有包容性特征的监管沙盒模式，允许相关企业在可控的范围内开展颠覆式创新，并基于包容审慎的...

Criminal law risks and rules of governance in blockchain finance

The characteristics of blockchain technology, on the one hand, lay the possibility of its application in finance, which is an important cornerstone of civilized society, and on the other hand, lay the clues for the illegal risks in blockchain financial activities. Based on the actual financial application scenario of blockchain technology, the risk of illegal application of blockchain technology in the financial field is firstly reflected in the promotion of cryptocurrency-based blockchain financial ecology for fraudulent purchase of foreign exchange crimes and money laundering crimes. Blockchain ICO and other centralized financial activities have brought about the risk of disrupting the financial order, such as insider trading crimes and financial fraud crimes. The further development and application of blockchain technology has also given rise to crime forms in decentralized scenarios based on smart contracts. Thinking about the rule of blockchain financial crimes, the lack of current law norms and the risk endogenous nature of blockchain technology have jointly led to the difficulty of identifying related crimes. Therefore, to better cope with the criminal law risks in blockchain finance, it is necessary to follow the principle of internal and external distinction to regulate the relevant risks. From an external perspective, to bring blockchain financial crimes into the rule of criminal law, the criminal law characterization of cryptocurrencies must first be re-evaluated. In this regard, the nature of different cryptocurrencies should be discussed on a case-by-case basis. At the same time, it is also necessary to clarify the legal status of the subjects of blockchain technology development, and reasonably define the platform responsibilities of relevant blockchain enterprises and the way of supervision. The current one-size-fits-all regulatory approach should be rethought, and a regulatory sandbox model with inclusive features should be adopted to allow relevant enterprises to carry out disruptive innovations within a controlled scope, and to reasonably set platform responsibilities based on an inclusive and prudent regulatory approach. As far as the internal perspective is concerned, the rules of governance in the blockchain field also require blockchain enterprises to integrate criminal compliance requirements as internal control means. Specifically, domestic enterprises involved in blockchain information services should effectively fulfill domestic regulatory requirements; enterprises involved in blockchain financial services should effectively fulfill their anti-money laundering obligations and integrate FATF and domestic regulations of various countries to do their compliance work; enterprises involved in blockchain financial transactions should pay close attention to the criminal risks of financial transactions, establish and improve criminal compliance for financial and securities crimes; domestic and foreign enterprises involved in the development of blockchain smart contracts should actively promote the integration of corporate criminal compliance and blockchain code. By improving the regulation and rules of blockchain both internally and externally, and prompting the criminal law to respond positively to blockchain financial crimes, it will help to better promote innovation in the field of blockchain finance and help China''s digital economy to move steadily and far.