論群眾募資法制規範之比較研究

近年來群眾募資廣為應用，群眾募資參與人數和募資金額亦不斷攀升，群眾募資所生之法律爭議可能日甚一日。然群眾募資可分為捐贈模式、回饋模式、借貸模式和股權模式，其不同模式更涉有不同法律適用問題，端視我國關於群眾募資法制規範仍嫌薄弱，顯見群眾募資活動於我國現行法律規範下之重大隱憂，有必要釐清群眾募資於我國法制下所生之法律適用問題。本論文主要以群眾募資各個模式於我國法律規範適用問題為研究，分別為：捐贈模式群眾募資適用公益勸募條例疑義、回饋模式群眾募資中募資者與贊助者間法律關係爭議、借貸模式下借貸平台監管爭議和現有法制規範之不足與相關法律問題。本文以案例研究方法實證出各模式的法律適用問題，而後蒐集美國與我國群眾募資相關規範資訊予以統整，並以文獻分析方法就個別模式所涉及問題進行研究，提出現行法律規範問題和未來法制建構相關建議。本論文研究發現，捐贈模式的群眾募資應視募資目的是否基於公益，進而決定該募資活動適用公益勸募條例與否，又公益勸募條例於群眾募資仍存有許多適用問題。回饋模式中募資者與贊助者間契約定性，應從基本契約解釋方法出發，觀募資專案內容是否指明其契約性質，否則應從個案情形客觀解釋契約。另從我國消費者保護法規定將回饋模式定位為買賣關係，將衍生許多法律爭議。最後，借貸模式中公證型網路借貸平台於美國受到證券監管法制規範，而我國證券交易法規範似有灰色地帶，且主管機關對於風險控制措施建立過於遲鈍且過於狹隘，如何制定適當監管制度為我國一大課題，本論文試圖借鑑外國之經驗並提出建議以利我國未來相關法制。

關鍵字

群眾募資；募資平台；公益勸募條例；消費者保護法；證券交易法

並列摘要

Crowdfunding has become a widely used platform for generating funds in recent years. With the growth in the number of crowdfunding participants and the amount of funds raised, legal disputes arising from crowdfunding practices have become increasingly severe. Crowdfunding models consist of donation-based, reward-based, lending-based, and equity-based crowdfunding, each governed by a different set of regulations. Taiwan lacks sufficient crowdfunding regulations, and thus, determining appropriate regulations in the Taiwanese context is a major research direction. This study investigated whether other Taiwanese regulations might be applicable to the crowdfunding model. In particular, the applicability of the Charity Donations Destined for Social Welfare Funds Implementation Regulations for donation-based crowdfunding was assessed. Moreover, the legal relationship between fundraisers and donors in reward-based crowdfunding was probed; how crowdfunding platforms monitor disputes in lending-based crowdfunding was examined; and how the current regulatory regime fails to capture crowdfunding within its purview was evaluated. Case studies were used for empirical analysis and to determine the legal issues relating to each crowdfunding model. Information on crowdfunding regulations used in the United States and in Taiwan were compiled, and document analysis was performed to research each crowdfunding model and relevant issues. Finally, this study proposes current problems in regulations on crowdfunding practices and provide suggestions for establishing crowdfunding regulations in the future. Our findings revealed that whether the Charity Donations Destined for Social Welfare Funds Implementation Regulations should apply to donation-based crowdfunding is determined by whether the fundraising purpose is for social welfare. However, the full scope of this regulation’s applicability is not entirely clear. In reward-based crowdfunding, characterization of the contract between fundraisers and donors should be based on the basic contract interpretation method and reviewed using crowdfunding project details of the contract terms. If such details are not present, the contract should be interpreted objectively on a case-by-case basis. Furthermore, the Consumer Protection Act classifies the relationship between fundraisers and donors in reward-based crowdfunding as a buyer and seller relationship, and this has led to numerous legal disputes. Finally, in lending-based crowdfunding, notarized Internet-based lending platforms in the United States are governed by securities regulations; such is not the case in Taiwan. Because the establishment of risk management measures by competent authorities in Taiwan has been slow and the measures proposed overly narrow, determining how to establish suitable regulations remains to be resolved. Therefore, this study referenced the experience of overseas countries and propose suggestions conducive to establishing relevant regulations in Taiwan in the future.