中央银行数字货币_零售CBDC的法律问题（英）_30页_1mb

Summary of Legal Aspects of Retail CBDCs

Core Content

This paper explores the legal challenges and considerations that jurisdictions must address when issuing a retail central bank digital currency (rCBDC). It outlines the key areas of legal inquiry and provides an analysis of the potential legal classifications of rCBDC, the obligations and liabilities of participants in the rCBDC ecosystem, privacy and financial crime concerns, and cross-border issues.

Main Points

1. Legal Classification of rCBDC

• The legal frameworks for money, payments, and central banking were not originally designed for digital central bank money.
• Jurisdictions may need to create a new legal object or asset for rCBDC with a tailored legal and monetary framework.
• The legal classification of rCBDC (as cash, deposit, or e-money) is crucial for determining how it will be treated in private law and how its functions align with existing monetary concepts.

2. CBDC as Money

• rCBDC is considered a form of money, but the question remains: what kind of money?
• The economic definition of money includes being a unit of account, a store of value, and a medium of exchange.
• However, the legal definition of money remains unclear and varies by jurisdiction.

3. CBDC as Cash

• rCBDC may be classified as legal tender and a form of central bank money.
• It may offer anonymity and peer-to-peer transactions, similar to cash.
• However, rCBDC is intangible and may not be a perfect legal equivalent to cash due to differences in design and functionality.

4. CBDC as a Deposit

• Deposits are generally not considered currency or legal tender.
• rCBDC could be seen as a liability of the central bank, similar to a deposit account.
• However, the relationship between the central bank and rCBDC holders may not easily fit into traditional deposit frameworks.

5. CBDC as E-money

• E-money is a monetary asset class that is distinct from cash and deposits.
• It is usually issued by private entities and not granted legal tender status.
• rCBDC may not align well with e-money due to its public issuance and potential use as a store of value.

6. Should rCBDC Fit into an Existing Asset Class?

• rCBDC could be classified under an existing monetary asset class, possibly with modifications.
• Using an existing class may simplify legal understanding and leverage existing private law frameworks.
• However, it may lead to unintended consequences and require legislative changes.
• If none of the existing classes are suitable, a new legal object may need to be created, which would allow for more flexibility in design but require extensive new legislation.

7. CBDC in Private Law

• The treatment of rCBDC in private law is essential for defining property rights, transferability, and use as collateral.
• Legal systems typically distinguish between tangible and intangible property rights.
• rCBDC is intangible but may have characteristics that make it functionally similar to tangible assets.
• Legal frameworks may need to be developed to recognize rCBDC as an object of property rights, especially in jurisdictions with evolving digital asset laws.

8. Transfer and Collateral Use of CBDC

• Clear rules on the transfer of rCBDC are necessary for its function as a means of payment.
• Settlement finality is a key legal consideration, determining when a transfer is irrevocable.
• The use of rCBDC as collateral may require specific legal mechanisms, potentially different from those used for physical cash or bank deposits.

9. Obligations and Liabilities in the rCBDC Ecosystem

• A well-functioning rCBDC system requires clear roles and responsibilities for all participants.
• Participants may include the central bank, system operators, intermediaries, access device providers, and end-users.
• Legal frameworks must allocate risks such as operational, legal, and reputational risks to the appropriate parties.

10. Risks in the rCBDC System

• Operational risk: Includes system failures, human errors, third-party issues, and cybersecurity threats.

• Legal risk: Involves regulatory compliance, liability distribution, and the need for clear legal definitions.

• Reputational risk: Arises from public perception and trust in the system.

• These risks can be managed through existing principles for financial market infrastructures (FMIs), such as the Principles for Financial Market Infrastructures (PFMI), but may require adaptations due to the unique nature of rCBDC.

Key Considerations

• Jurisdictions must tailor their legal frameworks to the specific design and policy objectives of their rCBDC.
• The balance between privacy and anti-money laundering (AML) requirements is a critical legal challenge.
• Cross-border issues, such as determining applicable law and system compatibility, require careful legal planning and potentially bilateral or multilateral agreements.
• The legal treatment of rCBDC as a form of money or payment instrument will influence its acceptance, functionality, and integration into the financial system.

Conclusion

• The legal landscape for rCBDC is complex and evolving.
• Policymakers and legislators must consider the implications of classifying rCBDC within existing legal categories or creating a new one.
• Legal clarity is essential for the successful implementation and public adoption of rCBDC.