| Central bank digital currency(CBDC)is a kind of digital currency issued by the Central Bank based on the national credit.It adopts the encryption principle and is aimed to replacing M0.There are disputes over the legal attributes of the central bank’s digital currency.One holds that the central bank digital currency is consistent with the legal physical currency,while the other holds that the central bank digital currency must go through legislative procedures to become legal currency.Even if legislation is passed,its legal attributes should not be completely identical with the legal physical currency.The central bank digital currency has its particularity.In terms of subject particularity,the issuing subject is the central bank,which is different from commercial banks and other market institutions.The trading subject is ordinary individuals,which has differences in group ability and willingness.The cognition of the regulatory subject lags behind that of the central bank,which faces challenges in maintaining the balance between financial stability and financial innovation;In terms of content particularity,the value of the central bank’s digital currency comes from the national credit and market acceptance,and it needs to rely on the encryption system,digital wallet and other material and technical conditions to face the obstacles of ownership recognition for intangible objects;In terms of the particularity of the impact,it will have an impact on the implementation of monetary policy and the stability of the existing monetary and financial system.Moreover,the recordability of transaction information will cause additional problems of user privacy information.China’s central bank digital currency is called digital RMB(E-CNY for short).It has the following characteristics:value is transferred in the form of cryptocurrency strings,no interest,controllable anonymity,and smart contracts can be loaded.In the aspect of currency issuance,the main legislative thinking is to refer to the existing legal currency,i.e.the physical RMB,but there exist the following problems:firstly,the provisions on currency attributes are not clear,which are specific technical standards,economic functions and legal attributes;Secondly,the issuance rules are not clear,i.e.formal issuance scheme have not been clearly defined by laws and other systems;Thirdly,the currency holders’ rights protection rules are not clear,mainly including the right to control,the right to pay and the right of privacy information.In terms of currency transactions,there exist the following problems:firstly,the definition of the transfer of rights in rem is not clear,and how to define the possession of digital RMB is still a difficult problem;Secondly,the rights and obligations of both parties to the transaction are not clear.Unlike the simple and intuitive delivery of physical RMB,the transaction of digital RMB has the possibility of long-distance transactions by complex technical means.After embedding smart contracts,more problems will occur.International organizations and central banks all hold that the central bank digital currency should be monopolized issued by the central bank,it reflects the direct liability of the central bank.But the specific design scheme is diversified.All countries recognize that the protection of personal information is the focus of public concern.Among the major countries in the world,the central bank digital currency design and supervision ideas of Britain and Sweden have great reference significance.The British experience has the following advantages:first,before issuing digital currency,the Bank of England conducted extensive communication with the public to strive for broad consensus and promote the formation of consensus;Second,we should pay enough attention to the stability of the currency and the public’s confidence in the currency,which is also the fundamental source of safeguarding the value of the currency;Third,it should have an open and inclusive attitude,integrate regulation and innovation,and fully consider the interests of potential users,including the protection of transaction data and privacy information.The Swedish experience has the following advantages:first,the function of the central bank digital currency is to make up for the vacancy of cash in the digital field,so its design,function and content can refer to cash;Second,the legal content and relevant regulatory system of the central bank digital currency are determined by the legislators.Before that,the central bank digital currency was in a non-legal state,but the central bank can still promote the currency.The content of criminal legal norms such as combating counterfeit money and money laundering can refer to the legal currency;Third,the central bank must clarify the relationship between the central bank’s digital currency and information protection.This paper puts forward the following suggestions.First,improve the concept of the central bank’s legal regulation on the issuance and transaction of digital currency,including maintaining the stability of currency value,maintaining the stability of monetary and financial order,encouraging technological and financial innovation,insisting wide universality and adaptability,and pay attention to protection of personal privacy information.Second,the steps to improve the legal regulation of the issuance and trading of digital currency by the Central Bank of China.On the whole,the final goal is to comprehensively regulate the issuance and trading of digital currency by the Central Bank of China.In the specific implementation steps,we can legislate first for the parts that have reached social consensus,temporarily shelve the parts with differences,and adopt the scheme of "pilot first,system later".During the pilot process,we can adopt the flexible management strategy of "regulatory sandbox".Third,the specific suggestions on improving the legal regulation of the central bank digital currency issuance are made to clarify the content of the central bank digital currency,including the technical scheme,economic function and legal content,of which the legal content mainly refers to the legal nature and legal compensation;Clarify the issuance rules of the central bank’s digital currency,including the rules during the pilot period and the formal rules;Improve the central bank’s rules for protecting the rights of digital currency holders,including the right to control money,the right to pay,and the right to privacy information.Fourth,the specific suggestions for improving the legal regulation of the central bank’s digital currency transactions are made to clarify the definition of the central bank’s digital currency transactions at the level of property rights circulation,and to determine the symbol of the central bank’s digital currency circulation,the definition of the object and the identification of property rights;Clarify the rights and obligations of both parties to the transaction. |
