Abstract:

The special path of financial market reform and the development of financial technology have promoted changes in the content and role of illegal fund-raising criminal regulations. Since digital currencies have multiple attributes and technical complexity which can challenge traditional financial industry and regulatory system， the criminal regulation should play a more positive role in order to make up for the shortage of financial regulation and civil remedies. Among various blockchain digital currencies， the issuance of payment tokens does not belong to illegal fund-raising due to not absorbing funds from investors directly. The behavior of financing by absorbing “mainstream digital currencies” can be regarded as absorbing public deposits in a disguised way， and the mainstream digital currencies can be regarded as “funds” in the element when determining illegal fund-raising. The behavior of reselling in the secondary market should not be regarded as the element of “inducement” of illegal fund-raising. We can learn from the provisions of the Howey Test in Securities Law of the United States to add the element that “the public's gains are mainly derived from the efforts of others” when determining illegally absorbing public deposits.

Key words: illegal fund-raising, digital currency, crypto-asset, blockchain, stablecoin