Virtual currency of civil law
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.
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.
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 casesstealing 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 wayfirst 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 futurefinally, 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
Civil code (Draft)
Article 1122 estate is the personal legal property left by a natural person at the time of death, except for those that cannot be inherited according to the law or their nature
therefore, since the implementation of the civil code in 2021, the scope of heritage has been extended to the legal property of natural persons, and the legal parts of virtual currency and network property can be inherited
According to Yonhap, the South Korean financial commission and other financial departments held a press conference at the Seoul Office Building of the central government on the 23rd to release the results of the on-site investigation of virtual currency and the criteria for preventing money laundering, and stipulated that the real name trading system of virtual currency will be implemented from the 30th of this month, and the existing virtual currency accounts will be suspended
previously, Hong Nanji, head of the state adjustment Office of South Korea, said that virtual currency is not legal tender, and the government has repeatedly warned that there are hidden dangers in the virtual currency market, such as big price fluctuation, fraud, and hackers attacking trading institutions. However, there are still some phenomena in the market, such as the market price of most virtual currencies at home is higher than that abroad, blind speculation and so on
There are policies on the one hand and Countermeasures on the otherIt is included in the general provisions of civil law and protected by law
"general principles of civil law":
Article 127 where there are provisions on the protection of data and network virtual property in law, such provisions shall be followed
however, the attitude of regulators is clear. Whether it is genuine bitcoin, or a variety of derivative Shanzhai coins, there is no way to obtain legal living space at present. This is something we need to be clear about. If the platform goes out of business or the staff runs away, it is very likely that they will lose all their money and the losses they have suffered will not be protected by law
the promises they give you often make the participants pay money quickly. Behind them is the Ponzi scheme of "robbing the east to pay the west" + "cheating the white wolf with empty hands". They use the money of new investors to pay interest and short-term return to old investors, so as to create the illusion of making money and cheat more investment. When no new investors enter, the return of old investors collapses one after another, and it is often difficult to withdraw cash, or the website cannot be opened
in short, although the external form of virtual currency is ever-changing, it is not divorced from its essence of pyramid selling. The more investors put in, the greater the final loss, and the more serious the loss may be.
virtual currency has been included in the scope of legal property in the general provisions of civil law, so it should be considered as property. However, virtual currency is generally registered on the Internet in the name of an indivial. According to the information on the Internet, it is personal property. Only if it can be proved that it belongs to the joint property of husband and wife, it can be divided< According to the general provisions of the civil law, Article 127 of the law shall apply to the protection of data and network virtual property.
The specific provisions of the civil code are as follows:
Article 392 of the civil code of the people's Republic of China [Rules for the implementation of the security right in the case of coexistence of personal insurance and material insurance] if the secured creditor's right is secured by both material security and personal security, the debtor fails to perform the e debt or realizes the security interest as agreed by the parties, The creditor shall realize the creditor's right according to the agreement
if there is no agreement or the agreement is not clear, and the debtor provides the security of the thing, the creditor shall first realize the creditor's right on the security of the thing; If the third party provides the guarantee of the thing, the creditor may realize the creditor's right in respect of the guarantee of the thing, or request the guarantor to undertake the guarantee liability. The third party who provides the guarantee has the right to recover from the debtor after assuming the guarantee liability
Article 511 if the contents of the relevant contract are not clearly agreed by the parties and cannot be determined according to the provisions of the preceding article, the following provisions shall apply:(1) if the quality requirements are not clear, the performance shall be in accordance with the mandatory national standards; If there are no compulsory national standards, they shall be implemented in accordance with the recommended national standards; If there are no recommended national standards, they shall be implemented in accordance with the instry standards; If there is no national standard or instry standard, it shall be performed in accordance with the usual standard or the specific standard conforming to the purpose of the contract
(2) if the price or remuneration is not clear, the contract shall be performed according to the market price of the place where the contract is performed at the time of conclusion; If the government fixed price or government guided price should be implemented according to law, it shall be implemented in accordance with the provisions (3) if the place of performance is not clear and the payment is made in the currency, the performance shall be performed in the place where the party receiving the currency is located; If the real estate is delivered, it shall be performed in the place where the real estate is located; Other subjects shall be performed in the place where the party performing the obligations is located (4) if the time limit for performance is not clear, the debtor may perform at any time, and the creditor may request performance at any time, but the other party shall be given the necessary preparation time (5) if the way of performance is not clear, it shall be performed in a way concive to the realization of the purpose of the contract (6) if the burden of the performance fee is not clear, it shall be borne by the party performing the obligation; The additional expenses for performance e to the creditor shall be borne by the creditorArticle 188 the limitation period for applying to the people's court for protection of civil rights is three years. Where the law provides otherwise, such provisions shall prevail
The limitation period is calculated from the date when the obligee knows or should know that the right has been damaged and the obligor. Where the law provides otherwise, such provisions shall prevail. However, if more than 20 years have passed since the date of damage to the right, the people's court shall not protect it. Under special circumstances, the people's court may, on the basis of the application of the obligee, decide to extend the time limitextended information:
the process of civil litigation
2. If the case is filed for review, the party concerned shall be informed to pay the litigation fee within 7 days, and the case shall be filed after paying the fee; If it does not meet the conditions for filing a case, it will not be accepted
if you are not satisfied with the ruling, you should appeal to the higher people's court within 10 days
after accepting the case, the court will serve a of the indictment to the other party within 5 days, and the other party will reply within 15 days, inform the party to exchange evidence, make a ruling on property preservation according to the application of the party, and immediately start the execution of the ruling; The public hearing of the case shall be announced three days in advance
(1) announce the hearing, check the identity of the parties, announce the members of the collegiate bench, inform the parties of their rights and obligations, and ask whether to apply for withdrawal (2) court investigation: the parties state the facts of the case (3) cross examination of evidence: to inform the witness of his rights and obligations, to testify, to read out the testimony of the witness who did not appear in court, to proce documentary evidence, material evidence and (3) to listen to information; Both parties express their opinions on the evidence materials(4) court debate: the parties argue and demonstrate the disputed facts and legal issues
(5) Court Mediation: under the auspices of the court, both parties agree to solve the dispute
If a mediation agreement is reached, a mediation statement will be made, which will take effect after both parties sign for it, and the parties will perform the content of the mediation statement or apply for execution; If no mediation agreement is reached, the collegial panel shall make a decision (pronouncement)
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