虛擬資產監理與不公正交易行為規範：比較法研究與我國法芻議

Crypto-Asset Regulation and Unfair Trading Practices: Comparative Studies and Proposals for Taiwan

隨著虛擬資產市場的逐漸發展，虛擬資產的詐欺、操縱市場、內線交易、不法洩漏內線消息等不公正交易行為逐漸成為重要的虛擬資產監理議題，國內外相關案例包括我國IBCoin詐騙案、Tether虛報儲備資產案、Coinbase沖洗買賣及員工內線交易案等，均突顯虛擬資產不公正交易行為規範的需要性。但本文檢視我國現行虛擬資產相關規範後，指出我國以證券性質虛擬資產與洗錢防制為基礎的虛擬資產規範模式，相對存在對虛擬資產不公正交易行為的規範不足。
本文首先參考IOSCO建議提出的虛擬資產不公正交易行為規範架構，其次回顧美國商品期貨交易委員會基於商品交易法對虛擬資產開展的不公正交易行為執法，再者回顧歐盟、南韓、日本及香港近年制訂的虛擬資產不公正交易行為規範，最後建議我國於規劃制訂的虛擬資產專法中納入包括詐欺、操縱市場、內線交易以及不法洩漏內線消息等不公正交易行為規範，並參考比較法與我國證券交易法與期貨交易法相關規定後，針對個別不公正交易行為態樣提出具體規範文字建議。

As crypto-asset markets have developed, how to regulate unfair trading practices involving crypto-assets, such as crypto-asset fraud, market manipulation, insider trading, etc., has become a crucial regulatory topic. Unfair trading practice scandals involving crypto-assets, such as IBCoin’s fraud in Taiwan, Tether’s misrepresentation of its USDT reserve assets as found by the U.S. Commodity Futures Trading Commission (“CFTC”), Coinbase's wash sales found by the U.S. CFTC, and a Coinbase employee’s insider trading found by the U.S. Securities and Exchange Commission (“SEC”), reveal the need to regulate unfair trading practices involving crypto-assets. That said, after examining Taiwan’s existing crypto-asset regulations, which are based on security token regulations and anti-money-laundering laws, this paper highlights their inadequacy in disciplining unfair trading practices involving crypto-assets.
To address the above inadequacy, this paper first refers to the regulatory framework recommended by the International Organization of Securities Commissions (“IOSCO”) for regulating unfair trading practices involving crypto-assets. It then reviews the enforcement actions adopted by the U.S. CFTC against unfair trading practices involving crypto-assets, including the Coinbase, Tether, and FTX cases. It further compares the special regulations adopted in the European Union (“EU”), South Korea, Japan, and Hong Kong governing unfair trading practices involving crypto-assets. Based on the above studies, this paper proposes that Taiwan include unfair trading practices regulations in the special law for crypto-assets contemplated by Taiwan’s financial regulator, which should govern crypto-asset fraud, manipulation of the crypto-asset market, insider trading of crypto-assets, and unlawful disclosure of inside information related to crypto-assets. In formulating its proposal, this paper refers to comparative laws, including those in the EU, South Korea, Japan, and Hong Kong governing unfair trading practices involving crypto-assets, as well as Taiwan’s existing unfair trading practices regulations under the Securities Exchange Act and the Futures Trading Act. It finally proposes specific legal texts for each unfair trading practice involving crypto-assets.