虛擬資產有關違法吸金於我國實務下適用──以美國法及歐盟法比較之

Illegal Fundraising Related to Virtual Assets in Our Country's Practice: A Comparison with U.S. and EU Law

虛擬資產為近年來蓬勃發展之新興議題，在區塊鏈與虛擬貨幣快速竄起之背景下以致許多有心人士藉由此類新型資產為不法行為以獲取鉅額利益，如可能涉及銀行法第29條、第29條之1從事違法吸金等行為，破壞金融市場的穩定並侵害他人之權益。為釐清虛擬資產在我國法律上的定性與相關規範之適用，本文將從我國實務判決出發，藉由文獻分析比較法，來探討虛擬資產在我國相關法規上之定性，與分析外國立法例對於虛擬資產之定性，並分析其在實務判決及學說上的相關見解與爭議，藉由比較法研究，探討虛擬資產在國外立法例上之規範方式，並與我國之規範做評析與比較。
目前我國在實務判決與學說見解間有所分歧，尚未有一致之結論，國際上對於虛擬資產之定性亦尚未有一致之見解。在虛擬資產如此蓬勃發展之現今，我國應參考外國立法例對於虛擬資產之定性，藉由立法之方式或法院之判決，以對此議題做出完善的規範體系，維持金融市場之穩定並保障人民之權益不受侵害。本文，建議不宜將「虛擬資產本身」論以違反銀行法之違法吸金論處，似有違罪刑法定原則之疑慮，在未修法制定相關管制虛擬資產專法時，宜將此類型犯罪自個案綜合判斷後，不論是以刑法之詐欺罪、詐欺犯罪危害防制條例等相關法律論處，同時亦建議立法者能盡快修定相關管制虛擬資產專法，期能因應虛擬資產犯罪在未來所帶來之衝擊及挑戰。

Virtual assets have emerged as a rapidly developing topic in recent years, driven by the rapid rise of blockchain and virtual currencies. However, many individuals with malicious intent have exploited these new types of assets for illegal activities, seeking to gain enormous profits, which may involve violating Article 29 and Article 29-1 of the Banking Act by engaging in illegal fundraising activities. Such actions undermine the stability of the financial market and infringe upon the rights of others. To clarify the legal characterization and applicable regulations of virtual assets in our country, this article will start from the practical judgments of our country's courts. Through literature analysis and comparative law, we will explore the legal characterization of virtual assets under our country's relevant regulations, analyze foreign legislative examples on the characterization of virtual assets, and examine related views and controversies in practical judgments and academic theories. by conducting comparative law research, we will investigate the regulatory approaches to virtual assets in foreign legislations and compare them with our country's regulations.
Currently, there are differing opinions between practical judgments and academic theories in our country, and no consensus has been reached. Internationally, there is also no consistent view on the characterization of virtual assets. In the face of the rapid development of virtual assets, our country should refer to foreign legislative examples on the characterization of virtual assets. Through legislation or court judgments, a comprehensive regulatory system should be established to address this issue, maintain the stability of the financial market, and protect the rights and interests of the people. This article suggests that it is inappropriate to treat“virtual assets themselves”as violating the Banking Act's illegal fundraising provisions, as it may raise concerns about violating the principle of legality in criminal law. Before enacting specific regulations for virtual assets, it is advisable to assess such crimes on a case-by-case basis and, where appropriate, prosecute under relevant laws such as the Criminal Code for fraud or the Anti-Fraud Criminal Harm Prevention Act. Meanwhile, it is also recommended that legislators expedite the revision of relevant regulations to control virtual assets, aiming to address the impacts and challenges posed by virtual asset crimes in the future.