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Financial instruments entail liabilities: Ether, bitcoin, and litecoin do not
ابزارهای مالی مستلزم بدهی هستند: اتر، بیت کوین و لایت کوین چنین نیستند-2020 The financial assets that are subject to major EU financial legislation (i.e. (designated types
of) financial instruments) have traditionally been defined in a largely exemplary and circular
manner. The recent proliferation of ‘non-traditional’ financial assets, such as cryptocurrencies and stablecoins, is increasingly challenging the viability of these pragmatic financial
asset definitions. Through the analysis of the technologies and functionalities underpinning non-traditional financial assets, legal scholarship has aimed to categorize novel assets
within the existing framework of financial asset definitions. Although a solid understanding of e.g. distributed ledger applications and cryptography appears a prerequisite for future
policy and legislative interventions, contemporary EU financial legislation is mostly indifferent to the technologies on which financial assets may be wired. Categorizations based on
the purposes that non-traditional assets may serve (i.e. payment, utility, and investment) are
more relevant to financial law, but suffer from subjectivity because they depend on the asset
usage by the asset holder. Against this backdrop, this paper proposes a novel systematization of non-traditional assets that is based upon the conceptual substructure of the assets
within the scope of EU financial legislation. More specifically, this paper submits that, irrespective of underlying technologies and functionalities, all assets that are subject to major
EU financial legislation have a conceptual common denominator: they entail the liability of
an entity and, hence, have intrinsic value. The proposed categorization singles out a welldefined group of novel financial assets that is not subject to EU financial law (i.e. assets that
only have extrinsic value). Different from functionality- and technology-based categorizations, the suggested approach allows to eradicate some ambiguities that are present in the
existing taxonomies. By exploring the conceptual common denominator of the financial
assets that are subject to EU financial legislation, this paper aims to foster debate on the
circular and exemplary character of financial asset definitions in EU financial legislation in
general and the relation of these definitions to novel types of financial assets in particular. Keywords: Financial instruments | Transferable securities | MiFID II | Intrinsic v. extrinsic asset value | Cryptocurrencies | Stablecoins | Bitcoin | Ether | Litecoin | Ripple |
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