對於我國虛擬資產現貨ETF監理之相關法律問題探討

Discussion of Relevant Legal Issues of the Supervision of Virtual Asset Spot ETFs in R.O.C

國際上虛擬資產之發行與交易已是相當普遍，虛擬資產之現貨或期貨ETF核准掛牌更是日益增加，虛擬資產及其現貨或期貨ETF可否為我國投資人交易之標的，現行之金融機構或證券投資信託業者可否發行或銷售各該已發行之虛擬資產ETF，不無疑義。就境外已上市櫃之有價證券依現行法令規定已得為我國證券商複委託交易之標的，另依主管機關以往之函令解釋亦屬被核定之有價證券，惟主管機關在國際上相繼核發虛擬資產現貨ETF之際，再三重申禁止之規定，其或考量國內金融之秩序與交易人之保護，然主管機關之監理政策不一與產生法令解釋前後邏輯相牴觸，而現行市場實務從事買賣者亦所在多有，此一怪異現象實有再審慎檢討必要，本文擬從法令與實務角度再深入分析探討，期能提出有益於市場合理開放及健全監理之建議意見。

The issuance and trading of virtual assets is quite common internationally, and the number of spot or futures ETFs approved for listing of virtual assets is increasing day by day. Can virtual assets and their spot or futures ETFs be the subject of transactions for our country’s investors? The current financial institutions or securities investment trust companies can issue or sell virtual asset ETFs that have been issued. Securities that have been listed on overseas exchanges or OTCs can be the subject of re-delegation and re-entrusted transactions by securities firms in accordance with current laws and regulations. In addition, according to previous letters and orders from the competent authorities, they are also belong to the approved securities. However, the financial supervision authority have Completely change supervision policies and attitudes. When released internationally and issuance of virtual asset spot ETFs, the prohibition has been repeatedly reiterated. This may take into account the domestic financial order and the protection of traders. However, inconsistent supervision policies conflict with the logic of legal interpretations, and current market practices include traders. Many times, this strange phenomenon really needs to be carefully reviewed. This article intends to conduct an in-depth analysis and discussion from the legal and practical perspectives, and hopes to provide suggestions and opinions that are beneficial to the reasonable opening of the market and sound supervision.