論社區幣之法制──以證券交易法為中心

An Examination of the Legal Framework for Community Currency from the Point of View of Securities and Exchange Act

基於全球化趨勢，各國形成往來密切、福禍同當的共同緊密關係，故當全球經濟出現危機，地方經濟將遭受連帶衝擊，1930年代經濟大蕭條、2008年金融海嘯與2020年新冠肺炎(COVID-19)即為示例。為保護地方市場免於遭受全球經濟衝擊，社區幣的功能逐漸受到各國重視與發展。社區幣具有重建社區和振興交流、支持公民活動和建立參與性的行政體系、振興地方經濟及區域經濟等目的與功能。近年來，臺灣亦興起社區幣的風潮，發行方式更從實體涵蓋到虛擬，後者更為結合金融科技創新之產物。然國內對社區幣的實施措施和監理法制之態度尚未成熟，如何對社區幣加以定性？不無疑問。以結合高雄夜市商圈推出虛擬「高雄幣」為例，金融主管機關認為，高雄幣僅僅類似紅利積點的概念而非貨幣。惟大多數學術和實務界先進，卻認為社區幣可該當補充貨幣。此兩種見解之差異實涉及貨幣的定義及判準；此外，社區幣究竟屬於哪一類型貨幣？其與法定貨幣之差異為何？有釐清之必要。
另一方面，金融主管機關對於「具證券性質之虛擬通貨」，近年來將其認定為證券交易法所稱之有價證券，採其應有證券交易法適用之態度。就社區幣虛擬化之虛擬通貨面向言，因其同時具有換取商品和服務之性質，究應將其定性為功能型代幣(Utility Token)，抑或將其認定為證券型代幣(Security Token)，而以證券交易法相繩，以避免有心人士假藉社區幣之名逸脫監管？此問題追根究底實涉證券型代幣與功能幣之間的判準為何？此外，美國法上對於投資契約之判準除了Howey Test之外尚有Reves Test，然我國金管會對於投資契約之審查卻僅著重於前者，故在缺乏對後者進行檢驗之下，是否會有漏網之魚？誠值探究。
再者，即便將社區幣定性為功能型代幣，仍應思考如何對功能型代幣加以監管方可在追求社區經濟發展的同時兼顧居民財產之保障？且名義上雖為功能型代幣，仍有可能為實質上之證券型代幣而受證券交易法規範。基於此，本文首先提出社區幣之概論，說明當前各種社區幣的運作目的各類型，次者，擬深入探討社區幣的本質與發展近況；再輔以美國法探討貨幣及功能型代幣與證券型代幣的判準，並針對社區幣分析其於證券交易法之監管議題以及其他法制之適用情形；最後以社區幣類型之一的高雄幣為例，探討其本質，並對其法律地位予以定性，進而就其相關監管問題作結，期能作為未來監管方向之參考以及業者發行社區幣之遵法方向。

Under the influence of globalization, countries have become more closely connected and have formed a common close relationship in weal and woe. Therefore, when there is a problem or crisis in the global economy, local economies will suffer a similar impact, as was the case in the Great Depression in the 1930s, the financial tsunami in 2008, and the COVID-19 pandemic in 2020. The role of Community Currency in protecting local markets from the impact of such global economic shocks has received growing attention from various countries, and a number of Community Currencies have been developed in recent years. This trend towards Community Currencies has also emerged in Taiwan, with the mode of issue tending away from physical currency to virtual currency, connecting the trend with the topic of Fintech innovation. However, as the domestic implementation system and the supervision of Community Currency have not yet matured, doubts remain over the definition of Community Currency. The case of Kaohsiung Coin us ed in the Kaohsiung Night Market is a good example of this confusion. It is not a currency per se, but rather a concept similar to bonus points. However, the majority of advanced academic research and practical circles believe that Community Currency can be used as supplementary money, begging the question of whether Kaohsiung Coin can be considered Community Currency. It is necessary to clarify the definition and determination of money, to examine the differences between Community Currency and fiat money, and to establish what category of currency Community Currency belongs to.
A statement issued by the Financial Supervisory Commission in July 2019 explicitly cites the Howey Test benchmark and holds that“virtual currencies that have the nature of securities are approved as“securities”as referred to in the Securities and Exchange Act.”, and states that the Securities and Exchange Act is applicable to these currencies. In terms of the virtual cryptocurrency aspect of Community Currency, its status is unclear because it has the nature of being exchanged for goods and services. Should it be characterized as a Utility Token, or should it be recognized as a Security Token and regulated by the Securities and Exchange Act, so as to prevent interested persons from escaping supervision under the guise of Community Currency? What are the criteria for distinguishing between a Security Token and a Utility Token? Besides the Howey test, there is the Reves test for making this judgment in the case of investment contracts in the United States. However, the FSC only focuses on the form er in the review of investment contracts. Therefore, in the absence of a review using the Reves tests, can this judgment be made? This is an issue worth exploring.
Moreover, even if it is considered that Community Currency is more similar to gift certificates and vouchers, and therefore that Community Currency is characterized as a Utility Token, it is worth thinking about how to supervise this Utility Token in order to take into account the protection of residents’property while pursuing community economic development.
Firstly, this article puts forward an introduction to the concept of Community Currency, explains the operation purpose and types of various Community Currency, and then deeply explores the essence and recent development of Community Currency; Then, it discusses the determination between currency and Securities Tokens with the help of American law, and analyzes Community Currency in these terms; Finally, taking Kaohsiung Coin as an example of Community Currency, this article discusses its essential nature, defines its legal status, and discusses the related regulatory issues. In this way, it is hoped this research may act as a reference for the direction of future regulation of Community Currency.