[Introduction] As the title states, the birth of virtual currencies such as Bitcoin has had a profound impact on the world's financial landscape. At the same time, it has also brought severe challenges to legal governance. According to general logic, for emerging things such as virtual currencies, they must be defined and classified before the various crimes of the criminal law can be applied to regulate illegal and criminal acts. But the key is that virtual currency is a product of blockchain technology, with multiple characteristics such as anonymity, property, data, and global circulation. Because of its decentralization, it is difficult for relevant departments to control it and its currency status is not recognized by relevant laws and policy documents in my country. Therefore, it is even more difficult to define virtual currency. The academic and practical circles have put forward a variety of views, and there are conflicts and oppositions between different views. Whether the property attributes of virtual currency are recognized or not will determine whether the illegal acquisition of virtual currency constitutes a property crime or a data crime, which has important judicial practice significance. This article will summarize the existing qualitative views on the attributes of virtual currency to help readers enter virtual currency and understand its complex and profound connotations.
1. A storm is brewing: a dispute over the financial attributes of virtual currencies
Virtual currency is a highly electronic electromagnetic data generated by complex algorithms based on modern information technology and cryptography. Because of its anonymity, decentralization, and global liquidity, it has been widely spread since its birth and has become one of the tradable currencies. At present, there are many virtual currencies that can be exchanged for legal currencies, such as Tether. Because virtual currency has a high investment and speculation value, while domestic investors are flocking to the virtual currency field to get a piece of the pie, there are also criminals who use virtual currency to make illegal money. In order to deal with the risks caused by the prevalence of virtual currency in the financial sector, my country has issued a series of normative documents such as the "Notice on Preventing Bitcoin Risks" since 2013, defining domestic virtual currency transactions as illegal. Such normative documents are also an important basis for many views that oppose the property attributes of virtual currency. Since then, domestic virtual currency-related crimes and virtual currency criminal crackdowns have shown a situation of one rising and the other falling. Illegal acquisition of virtual currency is a typical crime involving virtual currency, but in practice, the judgments on illegal acquisition behavior are different. The main reason is that there is controversy over whether virtual currency is property in the sense of criminal law, and different answers to this question lead to different judicial treatment methods.
In general, there are several views on the characterization of virtual currency: First, the illegal acquisition of virtual currency, because virtual currency has property attributes, belongs to the property in the sense of criminal law, and thus constitutes the crime of theft; second, the illegal acquisition of virtual currency, because virtual currency does not have property attributes, belongs to electromagnetic data, and thus constitutes the crime of illegally obtaining computer system data; third, if the illegal acquisition of virtual currency constitutes a crime, it simultaneously violates the crime of theft and the crime of illegally obtaining computer information system data, which is an imaginary concurrence, and one of the more serious crimes shall be punished. The reasons and arguments of different scholars and practitioners have their own merits, and there are also views that advocate judging the nature of virtual currency according to the time period when relevant policy documents are issued. The following article will focus on the academic and practical circles, and summarize and organize the existing views and reasons respectively.
2. Academic debate: Research on the property attributes of virtual currency
As early as 2015, Professor Zhang Mingkai, a leading figure in the legal community, published an article entitled "The Nature of Illegal Acquisition of Virtual Property" in the journal "Law Science", arguing that the view that the illegal acquisition of others' virtual property is a computer crime cannot handle cases where others' virtual property is illegally obtained without using computers, and has obvious limitations. Because virtual property has the possibility of management, transferability, and value, it is reasonable to identify the illegal acquisition of others' virtual property as a property crime. Liu Mingxiang, a professor at the School of Law of Renmin University of China, also discussed the nature of stealing virtual property in "Law Science" in 2016, but held a different view. He argued with virtual property in online games and believed that since the promulgation of the "Criminal Law Amendment (Seven)", the act of stealing online virtual property undoubtedly meets the constituent elements of the crime of illegally obtaining computer information system data, and therefore the legitimacy of sentencing for this crime should be affirmed. The discussion in the academic community was quite interesting. Yao Wanqin, an associate professor at the School of Law of Southwest University of Political Science and Law, published an article entitled "Doctrinal Analysis of the Characterization of the Theft of Online Virtual Property - and Discussion with Professor Liu Mingxiang", refuting Professor Liu Mingxiang's view, clarifying that online virtual property is an object of property rights in civil law, and belongs to the category of property in criminal law, and is in the form of intangible objects. He supported the use of "sentencing rules for amount-based theft crimes" and "sentencing rules for circumstances-based theft crimes" to specifically determine the value and sentencing range of stolen online virtual property. At the same time, Professor Chen Luolan from the School of Liberal Arts and Law of Zhejiang Agricultural and Forestry University and Professor Ren Yanjun from the School of Criminal Justice of Henan University of Finance and Economics and Law also demonstrated the essential attributes and characteristics of virtual property, supporting that it constitutes property protected by the criminal law. The former believed that illegal theft of virtual currency constituted an imaginary concurrent crime, while the latter believed that it was a separate crime of theft. When calculating the amount of the crime, it is more appropriate to use the average transaction price on the day the crime was committed as the basis. At the same time, Professor Guo Zhilong of China University of Political Science and Law and Professor Yang Zhiqiong of Southeast University both expressed their concerns about the continued expansion of the crime of illegally obtaining data from computer information systems. They believed that the crime covered too broad a range of data and could also encompass property interests already protected by the criminal law, as well as property interests that were not originally protected by the criminal law, and might become a new type of "pocket crime."It can be seen from this that most scholars still support the property attributes of virtual currency and believe that it has formed a relatively mature trading system. If virtual currency is simply considered to be data, the understanding of its connotation is too narrow, and it will also cause many legal application problems, which is not conducive to the judicial protection of victims.
III. Practical Discussion - Disputes over the Property Attributes of Virtual Currency
The authoritative opinions of the academic community will provide guidance for judicial practice, but prosecutors and judges are the responsible personnel who really deal with real cases. Therefore, the identification of the property attributes of virtual currency by judicial practitioners will be related to the judgment of specific cases. It is worth mentioning that many procuratorates and courts have different and conflicting views on this issue, and have not yet formed a unified judgment standard. For example, prosecutors Wu Chunmei, Li Changlin, and Wang Xingyun of the Third Branch of the Beijing Municipal People's Procuratorate believe that the "Notice on Preventing the Risks of Token Issuance and Financing" issued by the People's Bank of China and seven other departments in September 2017 emphasized that virtual currencies such as Bitcoin do not have monetary attributes. Therefore, after September 2017, the relevant rights of trading platforms to Bitcoin are not recognized by the overall legal order of the country, and the Bitcoin controlled by trading platforms does not have property attributes in the sense of criminal law. In September 2021, the People's Bank of China and ten other departments issued the "Notice on Further Preventing and Dealing with the Risks of Virtual Currency Trading Speculation", which has stricter control over virtual currencies such as Bitcoin, defining virtual currency-related business activities as illegal financial activities and strictly prohibiting them. In other words, all business activities involving Bitcoin on trading platforms are illegal activities, continuing the spirit of the 2017 "Notice". Bitcoin controlled by trading platforms cannot be regarded as property in the sense of criminal law. Based on this, this article distinguishes between virtual currencies controlled by trading platforms and virtual currencies owned by individuals, and in accordance with the spirit of national policies, distinguishes the types of crimes of illegally stealing different types of virtual currencies based on the issuance time of two key policy documents in September 2017 and September 2021, and uses financial policies as the basis for interpreting the criminal nature of virtual currencies. It is believed that after the time point when the state increases its financial control, the crime of illegally obtaining virtual currencies cannot be regulated as a crime of infringing property.
The discussion about whether virtual currency has the property attribute has not subsided. In 2023 alone, Chinese prosecutors, the Supreme People's Procuratorate, and the People's Court Daily and other official media have published practical articles with different views. On January 31, 2023, Associate Professor Sun Daocui and Prosecutor Wan Yijia published an article entitled "Accurately Qualifying the Crime of Illegal Acquisition of Virtual Currency with Typological Thinking" on the official website of the Supreme People's Procuratorate, advocating specific individual judgments on the criminal law nature of virtual currency, and proposed the judgment rules of ultimate purpose theory, main nature theory, and substantive judgment theory. It is also believed that crimes against virtual currency itself with a large amount of economic or property interests do not necessarily use the crime of illegally obtaining computer information system data. Regulation. On March 22, 2023, Chen Yuli, a senior prosecutor at the third procuratorial department of the first branch of the Beijing Municipal People's Procuratorate, published an article entitled "Identification of the Nature of Illegal Acquisition of Virtual Currency in the Perspective of the Unity of Legal Order" in "China Prosecutor", arguing that virtual currency, as a special virtual property, meets the characteristics of "property" and should be evaluated as a property crime object under the criminal law. The state has adopted a stricter control policy on virtual currency-related business activities, denying the "currency" attribute of virtual currency, but has never denied the "property" nature of virtual currency. In the digital age, interpreting virtual currency as "property" in the criminal law does not exceed the predictability of the people, nor does it violate the unity of the legal order. It is an appropriate interpretation that conforms to the current situation. This view affirms the property attribute of virtual currency and is a major turning point in the discussion of the practical community. It was thought that the discussion on the property attribute of virtual currency had been settled, but on August 24, 2023, Judge Wan Yongfu of the Fourth Intermediate People's Court of Chongqing published an article "Qualification of Illegal Acquisition of Virtual Currency" in the People's Court Daily, proposing that if the illegal acquisition of virtual currency occurred before September 2017, the virtual currency traded at this stage can be regarded as property in the sense of criminal law, and has the attributes of computer information system data, and at the same time constitutes the crime of theft and the crime of illegal acquisition of computer information system data, and is sentenced to one of the more serious crimes according to the imaginary concurrent crime. If the act occurred after September 2017, the virtual currency at this time should not be identified as property in the sense of criminal law, and cannot be regulated as a crime of property infringement.If the perpetrator obtains bitcoins by invading a computer system and modifying data to sell for profit, but does not cause substantial damage to the computer system or prevent it from functioning properly, he should be convicted of the crime of illegally obtaining computer information system data. This view shows that the judicial practice has not yet reached a consensus on the property nature of virtual currency.
IV. Summary of Viewpoints: My Opinion on the Property Attributes of Virtual Currency
As can be seen from the above, the characterization of virtual currency is indeed a headache for experts, scholars and judicial practitioners. Industry leaders have interpreted the attributes of virtual currency from multiple perspectives, such as the data nature, transaction value and national policy objectives of virtual currency. They have also expressed their own opinions on whether it constitutes property in the sense of criminal law, and some of them are directly opposed. Only the product of blockchain technology - virtual currency has such charm. Regarding the view against the property attributes of virtual currency, due to the "Notice on Preventing Bitcoin Risks" issued by the People's Bank of China and other five ministries and commissions, and the "Announcement on Preventing Token Issuance and Financing Risks" issued by the People's Bank of China and other seven departments, and other normative documents, virtual currency-related exchange business activities are prohibited, so its transaction value falls into a negative evaluation. In order to be consistent with financial policies, the criminal law should not protect the property attributes of virtual currency. The understanding and application of the Supreme People's Court's "Research Opinions on How to Qualify the Use of Computers to Steal Others' Game Currency for Illegal Sales and Profit" and "Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft" in 2012 have determined the judicial path of protecting virtual property as computer information system data, which to a certain extent denies the property attributes of virtual property. It is believed that if the theft of virtual property really needs to be regulated by the criminal law, it can be convicted and punished according to crimes such as illegal acquisition of computer information system data, and should not be handled as theft. The above are the main arguments of the supporters of the crime of illegal acquisition of computer information system data. However, it can be seen from the author's summary that more and more experts and scholars in both academia and judicial practice have affirmed the property attributes of virtual currency. The author believes that there is no need to discuss many complex reasons for whether virtual currency is property. It should start from the characteristics of property itself. If it meets all the characteristics required by property, why should it be excluded from the property queue? Moreover, the illegal acquisition of virtual currency is a means, and the purpose is the huge property value contained in virtual currency. However, the criminal law only punishes its means and ignores the legal concept of accomplice. Although my country's existing financial policies deny the exchange of virtual currencies, they do not completely prohibit individuals from holding virtual currencies. In addition, virtual currencies have exchange value and are widely circulated around the world. This is an objective fact. We cannot ignore their essential characteristics as financial products and focus on data-based characteristics just because policies do not allow it.
V. Conclusion
There has never been a thing like Bitcoin that has caused so much legal entanglement, causing many academic leaders and practical pioneers to roll up their sleeves and join the discussion. After years of discussion, no unified result has been reached. However, the truth becomes clearer the more it is debated. Only by more discussion and analysis, starting from the data nature, property attributes, underlying logic and development prospects of virtual currency, and looking at the problem from an international perspective, can we get closer to the core points and make the most reasonable judgment. Finally, whether virtual currency can return to the essence of virtual goods, whether judicial decisions will be unified, whether there will be special legislation for virtual currency in the future, and how legislation will respond to existing problems, let us wait and see.
