論加密貨幣擔保貸款法制—以美國統一商法典為中心

Abstract

過往因不動產之稀有性與不易喪失性、價值易於評估等特性，金融市場環境較重視不動產擔保物 ，然因金融風暴、科技快速發展使得財產種類越發日新月異且價值不斐，社會漸重視無體財產的融資模式 。加密貨幣即屬科技發展下的全新財產形式之一，並且具有無國界限制的特性，當個體戶或是法人機構看好加密貨幣未來價值而想長期持有，但又同時期望擁有現金流時，即可找尋線上加密貨幣貸款平台，將自己的加密貨幣作為擔保物，向放貸方尋求法定貨幣亦或是其他加密貨幣幣種的貸款。此種將加密貨幣作為擔保的非銀行直接融資活動，大致於Covid-19爆發、貨幣寬鬆政策之際於2020年中開始興盛。 秉持「優良之商業慣例必為優良之商法」（Good business practice should be good business law.）想法，並且考量加密貨幣屬於非大眾可簡單理解的科技資產類型，可得預期其產業之發展運用、操作會高度受加密貨幣相關專業公司與加密貨幣社群標竿人物所引導，故本文欲先以個案研究的方式，就現行世界前幾大知名接受加密貨幣作為擔保物的放貸中心化平台與去中心化平台商業實務運作模式為整理分析，研究對象包括Bitfinex、Nexo、BlockFi、Celsius Network與Binance，並著重探討各平台如何處置、保管借款人提供的加密貨幣擔保物。 於前述個案研究亦可知，現行世界前幾大加密貨幣貸款平台多位於美國抑或以美國統一商法典第九編擔保交易編作為管轄法，故本文會探討美國統一商法典第九編的擔保法制規範模式與架構，試著提出該法於適用加密貨幣擔保物時會出現的問題，並說明近年美國擔保法學者們對加密貨幣作為擔保物適用美國統一商法典第九篇的相關見解、疑惑與修法建議。本研究發現，問題主要會落在現行第九編法定擔保物種類不足而造成公示方式的不適當性與不確定性。 除此之外，本文亦會就美國統一商法典以規範新型資產為中心而於今年甫提出的統一商法典修正案為介紹，其中包括新型擔保物資產類型「可控電子紀錄」概念之提出等等，雖然尚未被美國各州所採納，然而我們可以發現本修正案以制訂新資產類型的方式解決了加密貨幣擔保物適用擔保法制時出現的大部分問題，頗值得我國借鏡。最後，本文欲試於美國擔保法制的啟發之下，分析加密貨幣擔保物適用臺灣現行擔保法制之問題與可能性，期望對現行臺灣動產擔保法制政策能提出一些新的思考方向。

In the past, because of the scarcity, difficulty of loss, and the ease of valuation of real estate, the financial market placed more emphasis on real estate collateral. However, due to the financial crisis and the rapid development of technology, the types of property are becoming more and more diverse and valuable, and society is increasingly paying attention to financing with intangible property. Cryptocurrency is one of the new forms of property under the development of technology, and it has the characteristic of having no national boundaries. When an individual or a legal entity is optimistic about the future value of cryptocurrency and wants to hold it for a long time, but also wants to have cash flow, they can find an online cryptocurrency lending platform and use their own cryptocurrency as collateral to seek loans in legal tender or other types of cryptocurrencies. This non-bank direct financing using cryptocurrencies as collateral began to flourish in the mid-2020, roughly around the time of Covid-19 outbreak and quantitative easing monetary policy. Based on the idea that "good business practice should be good business law", and considering that cryptocurrency is a type of technology asset that is not easily understood by the general public, it is expected that the development and operation of the industry will be highly guided by the professional companies related to cryptocurrency and the benchmark figures of the crypto community. This research project aims to shed light on the current business practices of the world's top centralized and decentralized cryptocurrency lending platforms that accept cryptocurrencies as collateral, including Bitfinex, Nexo, BlockFi, Celsius Network and Binance. As illustrated in the preceding case studies, several of the major existing cryptocurrency lending platforms are located in the United States or are governed by the U.S. Uniform Commercial Code (“UCC”) Article 9, which regulates the creation of security interests, and the enforcement of those interests, in movable or intangible property and fixtures. Therefore, this study analyzes the regulatory model and legal framework of the UCC Article 9, attempts to present the problems that arise when the Article 9 is applied to cryptocurrency collateral, as well as explain the views, opinions, doubts, and proposals to amend the Article 9 for cryptocurrency as collateral by scholars of secured transactions law in recent years. The findings indicate the problems that arise from the application of the law are mainly due to the inappropriateness and uncertainty of the notice regime due to the inadequacy of the existing legal collateral types. Additionally, this research project will analyze and introduce the UCC Amendment that was approved by ULC and recommended for enactment in all the states proposed in 2022 to regulate the emerging technologies. Although it has not yet been adopted by most of the U.S. states, we can observe that the draft addresses some of the issues of applying the secured transactions law to cryptocurrency collateral, such as the development of a new type of collateral called Controllable Electronic Records (CERs), among others, which is worthy of our country's reference. At the end, this study attempts to analyze the problems and possibilities of applying cryptocurrency collateral to Taiwan law, inspired by the regulatory model and legal framework of the U.S. secured transactions law, in the hope of suggesting some new directions for reflection on our current secured transactions legal system and policy.