Virtual currency criminal law

1.

It is not likely that the public security organ will file a case of virtual currency transaction fraud, because the virtual currency transaction fraud generally involves a large number of people, a wide range, a small amount and strong anonymity

it is difficult for the public security organs to collect evidence and arrest, because most of the information of the Chuangshi operation team of the virtual currency scam is not public and there is no way to collect evidence. Maybe the mastermind will become a victim after being arrested

with the popularity of virtual currency, disputes related to it appear frequently. Recently, the people's Court of Futian District in Shenzhen tried a dispute caused by investment in virtual currency. The court reminded that the investment transaction of virtual currency is not protected by law, and investors should keep sober and rational

extended information:

after the judicial organ reviews the criminal cases or civil disputes, it is the beginning stage of litigation activities that the judicial organ decides to list them as litigation cases for investigation or trial. Generally, it includes criminal cases, administrative cases and civil cases

According to the criminal procere law of the people's Republic of China, there are two conditions for filing a case:

1

The criminal responsibility should be investigated according to law. If there are criminal facts, but the law stipulates that criminal responsibility should not be investigated, the case shall not be filed

under any of the following circumstances, no criminal responsibility shall be investigated and no case shall be filed; If the case has been investigated, the case shall be annulled, or no prosecution shall be instituted, or acquitted

(1) if the circumstances are obviously minor and the harm is not great, it is not considered a crime

(2) the time limit for prosecution has expired

(3) exemption from punishment by special amnesty

(4) in the case of criminal law, it is a crime to be told, but it is not told or withdrawn

(5) the defendant has died

(6) other laws and regulations provide for exemption from criminal responsibility

2. 1. Although network virtual currency can not be completely equivalent to money and other traditional property, in specific occasions, the perpetrator can achieve the criminal purpose of illegally obtaining other people's property through the possession of virtual currency. Therefore, the fraud of virtual currency may also endanger the property safety of citizens, legal persons and other organizations, which has considerable social harmfulness and should also be punished as a crime
2, if the public security organs suspect the criminal detention, the procuratorate can not approve the arrest, they should apply for l pending trial. Bail pending trial also goes through the court
the seventy-seventh provision of the criminal procere law stipulates that the people's court, the people's Procuratorate and the public security organ shall not exceed twelve months for the suspect and defendant to be l, and the longest residence shall not exceed six months.
ring the period of l pending trial and residential surveillance, the investigation, prosecution and trial of the case shall not be interrupted. If it is found that criminal responsibility should not be investigated or the term of l pending trial or residential surveillance has expired, the l pending trial or residential surveillance shall be lifted in time. In case of cancellation of l pending trial or residential surveillance, the person who has been led pending trial or residential surveillance and the relevant units shall be informed in time.

3. If the amount of fraud reaches the standard of the crime of fraud, it is a criminal case
according to the interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the specific application of law in handling criminal cases of fraud, the standard of "large amount" (i.e. filing standard) is to defraud public and private property worth 3000 yuan to 10000 yuan or more. The specific amount of the starting point of punishment is more clearly stipulated in various localities.

4.

According to the news on February 10, 2018, on September 4, 2017, seven ministries and commissions of the people's Republic of China issued the notice on preventing the financing risk of token issuance, which regulates the issuance of tokens. In the notice, the nature of all kinds of tokens and "virtual currency" is clearly defined: it is not issued by the monetary authority, and it has no monetary attributes such as legal compensation and mandatory, It does not have the same legal status as currency and cannot and should not be used as currency in the market. Nevertheless, it is undeniable that all kinds of "virtual currency" still have a certain property value and are part of the property of the holder. So, how to identify the nature of the theft of such tokens

In order to protect the legitimate rights and interests of "virtual token" holders, the author intends to discuss such issues through a relevant news report and relevant cases

stealing bitcoin

recently, a news report said that Haidian police in Beijing cracked a case of destroying computer information system. The suspect Zhong used his administrator's authority to modify the company's computer applications and steal 100 bitcoins. Before he could sell the stolen money, Zhong was arrested by the police. At present, Zhong was detained for the crime of destroying computer information system

it can be seen from the report that the police detained the perpetrator for stealing bitcoin on suspicion of damaging the computer information system. The crime of destroying the computer information system stipulated in Article 286 of the criminal law of our country refers to the act of deleting, modifying, adding or interfering with the functions of the computer information system in violation of the provisions of the state, resulting in the abnormal operation of the computer information system and serious consequences, or deleting, modifying or interfering with the data and application programs stored, processed or transmitted in the computer information system Modifying or adding operations with serious consequences, or deliberately making or spreading destructive programs such as computer viruses, which affect the normal operation of the computer system with serious consequences

In the author's opinion, this crime is one of the crimes of impairing social management order in Chapter 6 of the criminal law, that is, the legal interest protected by this crime is actually the public order of our society, not the property interests of the digital currency holders, which in fact denies the property value of digital currency, It is only protected as a data or system function in a computer system. The author thinks that there is some irrationality in this way

first of all, in the notice on the prevention of bitcoin risk issued in 2013, it is mentioned that bitcoin is not a real currency because it is not issued by the monetary authority and does not have such monetary attributes as legal compensation and compulsion. Bitcoin has four main characteristics: no centralized issuers, limited amount, no geographical restrictions and anonymity. Because it belongs to a specific virtual commodity in nature The notice also clearly mentioned that bitcoin does not have the same legal status as currency and should not be used as currency in the market. However, as a virtual commodity, the property value behind bitcoin cannot be ignored

Secondly, Article 127 of the general provisions of the civil law, which came into effect on October 1 last year, stipulates that if the law has provisions on the protection of data and network virtual property, such provisions shall prevail. Although only the protection of the network virtual property has made the principle provisions, but it can not be denied that this shows our country's attitude towards the protection of the network virtual property. Although there is no special law for the protection of data and network virtual property in China, from the perspective of the general provisions of civil law, it is predicted that there will be relevant legislation in the future

finally, from the relevant cases, we can also see the recognition of the property attribute of virtual currency such as bitcoin in China's judicial practice. In April and may 2013, Liu premeditated to set up a bitcoin trading platform, so he recruited Jin and Huang (both sentenced) to jointly set up a "bitcoin" trading platform. During this period, Liu, Huang, Jin, Jin and the defendant he, in addition to other acts of directly stealing customers' funds, also frequently cashed RMB by selling customers' bitcoins, and transferred 120 bitcoins from the website. Finally, the court convicted and punished the defendant for fraud, and the bitcoin transferred by the defendant was also included in the property loss of the victim. Therefore, from the judicial cases, we can also get the recognition of the property attributes of virtual currency such as bitcoin

based on the above reasons, the author thinks that it may be unreasonable to regulate the theft of virtual currency only as the crime of damaging computer information system. We should face up to the hidden property value and consider the application of the crime of infringing property in China's criminal law. Only in this way can we effectively protect the legitimate rights and property of digital currency holders in China

5.

I wanted to buy money to make a profit, but I didn't want the issuing party to become a pyramid selling organization, suspected of breaking the law and committing crimes; All participating funds will be collected. At this time, whether the money can be recovered has become the most concerned problem of the buyer. The crime of organizing and leading pyramid selling activities is established, and the relationship of accomplice is usually established between the upper and lower levels of pyramid selling activities; All the money raised is usually regarded as illegal income. After being cheated into joining, they recommend others to join and get tokens and cash back, and the profits will usually be recovered as illegal income. So if you are cheated into joining an organization, can you recover the "entry fee" you paid

First, recovery does not necessarily mean confiscation, but restitution

Second, the scope of recovery: illegal income within the scope of crime

Third, the calculation of "illegal income"

who returns the money: Calculation of "illegal income"

according to Article 64 of the criminal law, only "illegal income" should be recovered and refunded. Illegal income, literally, refers to the property obtained through illegal activities (including but not limited to crimes). The second provision of the Supreme People's Procuratorate "the regulations on the management of property in criminal cases involving the people's Procuratorate" stipulates that the property involved includes the illegal gains and the fruits of the suspect, the property used for the crime, the prohibited goods illegally held and other property and fruits related to the case. p> According to the above provisions, the crime of illegal income is divided into two categories according to the basis of illegal income:

(1) the illegal income in the crime of obtaining interests; Such as theft, corruption, bribery of stolen goods, property, etc

(2) the crime of operating interest, such as the crime of usury

it can be seen that illegal income not only includes the property obtained through illegal and criminal activities (i.e., original illegal income, profit type), but also includes the possible natural and legal fruits of these properties and the property interests (i.e., derived illegal income, profit type) obtained from the operation of the property. For the former, the activities that generate income are illegal; Income is the object or result of illegal behavior. For the latter, the activities that generate income are legal; Only the principal used to generate income is suspected to be illegal

the above two types of illegal gains are generated in different ways, and their recovery calculation methods are also different. For the illegal income of the crime of obtaining interests, the illegal property itself is the amount of illegal income; As for the illegal income of the crime of business interests, the normal business interests should be dected. For example, in the crime of usury, the illegal income usually refers to the income from interest rate difference, not the total amount of the loan

In terms of norms, the attitude of the law is also very clear: in the reply of the Supreme People's Court on how to determine the "amount of illegal income" in the trial of criminal cases involving the proction and sale of fake and shoddy goods in 1995, it is pointed out that the "amount of illegal income" stipulated in the decision of the Standing Committee of the National People's Congress on punishing the crime of procing and selling fake and shoddy goods refers to the amount of illegal income from the proction and sale of fake and shoddy goods The amount of profit from selling fake and inferior procts. In the literal sense, the "illegal income" here should be dected from the corresponding cost

In judicial practice, it is generally believed that the amount of procts actually purchased is the amount of legitimate business and should be dected; In the case of providing services without actual procts (for example, manpower input in illegal medical practice), the corresponding costs will not be dected

in the crime of organizing and leading pyramid selling activities, there are cases of "Capitation" returning to "online". According to Article 8 of the measures for the determination of illegal income from administrative penalty cases by the administrative department for Instry and Commerce (No. 37 order of the State Administration for Instry and Commerce), the illegal income from pyramid selling activities such as touting and defrauding entry fees shall be calculated according to the total income of the parties concerned

it can be seen that the "tap" paid to the online is not the income of the parties at this level in the MLM organization; It is the income of online, which should be dected and counted into the amount of illegal income of online. After the illegal income collected as online, it should be returned to offline in time according to the above

the above is today's sharing, thanks to the readers

6. Article 312 of the criminal law [crime of concealing or concealing criminal gains or proceeds of criminal gains] Whoever knowingly conceals, transfers, purchases, sells for others or conceals or conceals by other means the criminal gains or proceeds thereof shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also, or shall only, be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined< If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the person in charge and other persons who are directly responsible for the crime shall be punished in accordance with the provisions of the preceding paragraph< (2017) guiding opinions of the Supreme People's Court on sentencing of common crimes
(XIV) crime of covering up or concealing the proceeds of crime or the proceeds of crime
1. If the crime constitutes a crime of covering up or concealing the proceeds of crime or the proceeds of crime, the starting point of sentencing can be determined within the corresponding range according to the following different circumstances:
(1) if the circumstances of the crime are general, The starting point of sentencing may be determined within the range of fixed-term imprisonment or criminal detention of less than one year< (2) if the circumstances are serious, the starting point of sentencing can be determined within the range of three to four years of fixed-term imprisonment
2. On the basis of the starting point of sentencing, we can increase the amount of penalty according to the amount of crime and other criminal facts that affect the composition of the crime, and determine the benchmark penalty.

7. For suspected fraud, it is suggested to dial 110 or report to the public security organ in time, and the public security organ shall file a case for investigation and investigate the legal responsibility of the perpetrator.

8. If the online virtual game currency swindles 4000 yuan, it is suspected of fraud and shall be sentenced to fixed-term imprisonment of not more than three years< According to the interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the specific application of law in handling criminal cases of fraud, which came into effect on April 8, 2011, those who defraud public or private property with a value of 3000 yuan to 10000 yuan or more, 30000 yuan to 100000 yuan or more, and 500000 yuan or more will be punished, It should be respectively identified as "large amount" and "huge amount" and "especially huge amount" stipulated in Article 266 of the criminal law< Article 266 of the criminal law stipulates that whoever swindles public or private property, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; If the amount is huge or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined; If the amount is especially huge or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined or have his property confiscated. Where there are other provisions in this law, such provisions shall prevail.