北京刘扬律师

[Introduction] The author has represented many criminal prosecution and defense cases in the cryptocurrency circle. In such cases, in addition to being concerned about the legal characterization of the suspects' behavior, the parties also pay special attention to the early freezing measures and subsequent judicial disposal of the virtual currency involved. This is because, although many judgments in judicial practice do not recognize the financial attributes of virtual currency, and the illegal acts of fraud, theft, and robbery of virtual currency are uniformly regulated as computer crimes, the motive and purpose of the defendants in the above crimes are the considerable property value attached to the virtual currency, and the victims are most concerned about whether the virtual currency they lost can be returned to the original owner. Therefore, in criminal cases in the cryptocurrency circle, the virtual currency involved has both property and evidence attributes. In judicial practice, most investigative agencies freeze the suspect's virtual currency wallet to preserve the property and evidence involved. However, due to the unclear legal attributes of virtual currency, the legal basis and legitimacy of the investigative agency directly freezing the virtual currency account need to be further clarified. The author analyzes the procedural issues of freezing and puts forward suggestions for improvement.

Today, The Paper reported a case in which a college student distributed local dogs and withdrew the pond to make a profit, which triggered widespread discussion in the circle. The college student was sentenced to four years and six months in prison and a fine of 30,000 yuan in the first instance. The Paper learned that in the second instance, Yang Qichao's defense lawyer still defended his innocence.
I personally think that a not guilty defense is probably not the best solution for this case. There are two important time points for effective defense in this case. First, in the process of transferring the case for review and prosecution, the public prosecutor should explain the legal principles and reasoning to the public prosecutor and strive for non-prosecution or suspended sentence. Of course, this stage has passed and it is meaningless to talk about it again. Second, in the second-instance defense, the focus should be on the argument of the charge. If it can be changed to the crime of illegally obtaining computer information system data, and the defendant voluntarily pleads guilty and accepts punishment, the defendant's sentence will be greatly reduced. If you just defend your not guilty, it is unlikely to have a good result.

On February 27, 2024, the Supreme People's Court held a press conference to announce that the People's Court case database was officially launched and open to the public. The public can view it after registering and logging in. The URL of the People's Court Case Library is: www.rmfyalk.court.gov.cn. You can also click on the "People's Court Case Library" icon on the homepage of the official website of the Supreme People's Court to enter directly. Up to now, the People's Court case database has included a total of 3,711 cases. Lawyer Liu Yang has summarized all cases on virtual digital currency through search and sorting, and compiled links to specific cases for easy reference: 1. Search for "Tether" (including usdt) , a total of 3 cases appeared, the details are as follows: 1. Feng Mou fraud case: criminal attributes of virtual currency https://rmfyalk.court.gov.cn/dist/view/content.html?id=WQsjNG%252F5Geoq1Wt7%252FtWZ6S59LLw7SMflVi5wxkebRRE% 253D&lib=ck&qw=%E6%B3%B0%E8%BE%BE%E5%B8%812. Fraud case of Chen and others: Property attributes of virtual currency in criminal law https://rmfyalk.court.gov.cn/dist /view/content.html?id=peRCaVCG%252BSZAwFJHHuHC59CEekoNVstij%252Bv7KMawsLg%253D&lib=ck&qw=%E6%B3%B0%E8%BE%BE%E5%B8%813. Case of fund-raising fraud and illegal absorption of public deposits by Chen Moumou and others : Determination of illegal possession purpose for the crime of fund-raising fraud https://rmfyalk.court.gov.cn/dist/view/content.html?id=78Ha9RqyD%252FATlefPWtI4ia0ci1mwfKjo5LLMIWkz3%252Bo%253D&lib=ck&qw=%E6%B3%B0%E8% BE%BE%E5%B8%81 2. Searching for "Bitcoin", a total of 7 cases appeared, including 5 new cases, as follows: 1. Zhang robbery case: forcing the victim to buy Bitcoin and then robbing the Bitcoin Handling of reselling and liquidation cases https://rmfyalk.court.gov.cn/dist/view/content.html?id=IperRGavUvssdbbK57ghjBtRXdvlbTi2nTPv0vF2GnM%253D&lib=ck&qw=%E6%AF%94%E7%89%B9%E5%B8% 812. An entrustment contract dispute case between a company in Shanghai and a computing technology company in Beijing: Judicial determination of the validity of Bitcoin “mining” https://rmfyalk.court.gov.cn/dist/view/content.html?id=Tes %252BImj9P4TrbUyt6%252BlFGA8poNRyuZBddO6ZB%252BohLTI%253D&lib=ck&qw=%E6%AF%94%E7%89%B9%E5%B8%813. Guiding Case No. 199: Application by Gao Zheyu and Shenzhen Cloud Silk Road Innovation Development Fund Enterprise and Li Bin Case to set aside arbitration award https://rmfyalk.court.gov.cn/dist/view/content.html?id=6tHz24AAKwT%252F9glY7I9dr7njO5KuoN3SBoIcBBZVryw%253D&lib=zdx&qw=%E6%AF%94%E7%89%B9%E5%B8%814. Chen Mouchun smuggled drugs and illegally possessed them Drug case: The act of smuggling new psychoactive substances controlled by the state constitutes the crime of drug smuggling https://rmfyalk.court.gov.cn/dist/view/content.html?id=R5G%252BvRNManXoHqzBxA60bXTH%252Fh0IpWcysbK8yz7Rk%252BM%253D&lib=ck&qw =%E6%AF%94%E7%89%B9%E5%B8%815. Wang v. Chen Sales Contract Dispute Case: "Mining Machine" Sales Contract Validity and Legal Consequences https://rmfyalk.court.gov. cn/dist/view/content.html?id=X0UcRyr0RYqKb6hOnrld6%252Bcxx73EJ0DPwTK%252FqFaaW6U%253D&lib=ck&qw=%E6%AF%94%E7%89%B9%E5%B8%81 3. Search for "ether", only 1 appears cases and no new cases. 4. Searching for "virtual currency", a total of 15 cases appeared, including 9 new cases. The details are as follows: 1. Luo sued the Development and Reform Commission of Ji'an County, Jiangxi Province and the People's Government of Ji'an County for orders for correction, administrative review and regulation Sexual document review case: Judicial review of ordering an individual who “mined” virtual currency to rectify his administrative behavior https://rmfyalk.court.gov.cn/dist/view/content.html?id=94I8PTvHqemy7zgn3ZIq5JFwA8tLNr1cxQI%252FT0I%252FpC8%253D&lib=ck&qw =%E8%99%9A%E6%8B%9F%E8%B4%A7%E5%B8%812. The case of Ding Mouzhong and others illegally absorbing deposits from the public: In the case of competing criminal executions based on the same fact, the victim should be given priority https ://rmfyalk.court.gov.cn/dist/view/content.html?id=zL9FNfGRWHm%252BUzy0E0Dtn4OzjLTRkkN8%252BjZRaakKzdE%253D&lib=ck&qw=%E8%99%9A%E6%8B%9F%E8%B4%A7% E5%B8%813. Case of Chen and others covering up and concealing criminal proceeds: determination of "knowingly" in online payment and settlement assistance behavior https://rmfyalk.court.gov.cn/dist/view/content.html?id= ghLj5wjJyY8oKtulkH%252BwGZCRsOVlLCG04CGwLV9YPZw%253D&lib=ck&qw=%E8%99%9A%E6%8B%9F%E8%B4%A7%E5%B8%814. A Shanghai company v. a Beijing computing technology company entrustment contract dispute case: Bitcoin " Judicial determination of the effectiveness of "mining" https://rmfyalk.court.gov.cn/dist/view/content.html?id=Tes%252BImj9P4TrbUyt6%252BlFGAx5hC8Clmt9vzJky13Veog%253D&lib=ck&qw=%E8%99%9A%E6%8B %9F%E8%B4%A7%E5%B8%815. Copyright infringement case between a certain Beijing technology company and Mr. Huang: criminal determination of copying and distributing computer software to which others have copyright without the permission of the copyright owner for the purpose of profit https ://rmfyalk.court.gov.cn/dist/view/content.html?id=3lxZiBRPxY%252BPYh9fBqjhfZ34HWlUGtZHJkH8xE5zyOg%253D&lib=ck&qw=%E8%99%9A%E6%8B%9F%E8%B4%A7%E5%B8%816.Luo Case of a certain organization and leadership of a pyramid selling activity: The defendant suffered losses from the funds invested in organizing and leading a pyramid selling activity, which does not affect the determination of the nature of his behavior https://rmfyalk.court.gov.cn/dist/view/content.html ?id=iPmAGOsfHJ%252BkQNhqOn6Jq3dN4kgbsT4efjNHSHRydsw%253D&lib=ck&qw=%E8%99%9A%E6%8B%9F%E8%B4%A7%E5%B8%817. The case of Zheng, Peng and Yang opening a casino: Calculation of betting amount for online gambling https://rmfyalk.court.gov.cn/dist/view/content.html?id=8szTyn2Dr3XK5s2gcyifbLwjntfDWPbQ7yYH3Pr50%252BA%253D&lib=ck&qw=%E8%99%9A%E6%8B%9F%E8 %B4%A7%E5%B8%818. The case of Wang and others opening a casino https://rmfyalk.court.gov.cn/dist/view/content.html?id=8xyvnhtkGlvniQac3CIpjd6Ba2Gk6DD90T6AW52OC%252BU%253D&lib=ck&qw=%E8 %99%9A%E6%8B%9F%E8%B4%A7%E5%B8%819. Han Moumou smuggled, sold, transported drugs, raped, and taught criminal methods; Zhang Moumou smuggled drugs and raped cases: meaningless Big https://rmfyalk.court.gov.cn/dist/view/content.html?id=vxD1NctpOFIZp9B9jS%252BWn0R%252Fqoh2J%252F6Pv1Tr1TQWz4U%253D&lib=ck&qw=%E8%99%9A%E6%8B%9F%E8% B4%A7%E5%B8%81 5. Searching for "virtual currency", a total of 8 cases appeared, including 1 new case. The details are as follows: 1. The case of Weng Moumou opening a casino: using an online chess and card platform to open a casino. Determination of “disguised profit making” https://rmfyalk.court.gov.cn/dist/view/content.html?id=JhXmrSocfsGm54zaxzG55kPPvfe9%252FyxBHBMiquBGPlU%253D&lib=ck&qw=%E8%99%9A%E6%8B%9F% E5%B8%81 6. Searching for "NFT" (including digital collections), a total of 1 case appeared. The specific circumstances are: 1. A case of dispute between a cultural and creative company in Shenzhen against a technology company in Hangzhou for infringement of the right to disseminate work information network: NFT Responsibility determination of digital works trading network service providers https://rmfyalk.court.gov.cn/dist/view/content.html?id=XO5boHqsoW%252FR8lIrH84jw32kZRERQTSibFwBWPcqeHE%253D&lib=ck&qw=nft

On September 24, 2021, ten departments including the central bank jointly issued the "Notice on Further Preventing and Dealing with the Risks of Speculation in Virtual Currency Transactions (hereinafter referred to as the "924 Notice"). Some of the views in this article will be elaborated in conjunction with the relevant spirit of the 924 Notice. Relatedly, at present, suspected crimes in the currency circle have attracted more and more attention from the case-handling agencies. As a link in the transaction of legal currency and digital currency, the currency circle OTC is more easily discovered in the entire criminal chain and is at the front end of the entire case. Due to the limited understanding of the currency industry by the case-handling agencies, OTC merchants often know nothing about the law. The resulting information gap and poor understanding have led to the number of OTC merchants who have been "accidentally injured". Therefore, in the defense of OTC suspected of committing a crime of trust in the currency circle, we must focus on the legality of the OTC behavior and whether the suspect has criminal intention to defend the innocence. At the same time, for those who do constitute a crime, the crime of trust based on the Considering that it is a misdemeanor, we should make a defense of misdemeanor based on the specific crime circumstances, social harm, etc., and strive for non-prosecution and the use of suspended sentences. At the same time, criminal reverse services such as property disposal and rights protection that are not involved in the case also run through the defense work. 1. Although the OTC behavior in the currency circle is an illegal financial activity, it is not equivalent to the criminal OTC behavior in the currency circle. It is customarily called "over-the-counter transaction" in the currency circle. Its essence is the exchange of legal currency and digital currency. In a nutshell In short, it means handing over money with one hand and coins with the other. Because of the customary term "over-the-counter transaction", it has led to many misunderstandings among the case-handling agencies. Many case-handling personnel do not understand the currency industry and relevant laws, regulations and departmental regulations. When they hear " The word "off-site" preconceptions that OTC's behavior is illegal and unfair, so it is necessary to clarify relevant legal and regulatory issues. First, normal personal OTC behavior can only be considered illegal financial activities at best. In previous relevant documents, they all made negative evaluations of the OTC behavior of institutions, and did not explicitly prohibit individuals from engaging in transactions in legal currency and virtual digital currencies. According to Notice 924, "Illegal financial activities such as the exchange business of legal currency and virtual currency... are strictly prohibited and will be resolutely banned in accordance with the law. Those who carry out relevant illegal financial activities that constitute a crime will be investigated for criminal liability in accordance with the law.""In the notice, no subject is added before the relevant statement. From a cautious point of view, it should be regarded as individuals engaging in OTC activities and are deemed to be illegal financial activities. However, at the same time, the notice also states "If a crime is constituted, criminal liability shall be pursued in accordance with the law." expression, that is to say, for normal and ordinary personal OTC behavior, at most, the general illegality should be evaluated. As a departmental regulation, the 924 Notice can only be used as a prerequisite for constituting a crime, but cannot be the basis for determining a crime. It also needs to be reviewed based on all subjective and objective elements. Second, individual OTC should not evaluate the nature of behavior based on "off-site" and "on-site". The so-called "on-site trading" refers to the transactions between individuals and the trading platform. Transactions, and "over-the-counter transactions" are transactions between individuals who are separated from the trading platform. What needs to be made clear is that there is currently no "on-exchange trading" in our country! Before the 94 announcement, individuals and trading platforms could Those who are engaged in legal currency transactions, such as buyers who want to purchase virtual digital currency, only need to pay the fiat digital currency to the platform, and the trading platform will pay the corresponding virtual digital currency to the buyer. This is on-site trading. The 94 Announcement completely banned it. This behavior does not prohibit legal currency transactions between individuals. Therefore, after the 94 announcement, trading platforms can no longer engage in legal currency transactions with individuals. Currently, trading platforms widely adopt a matching mechanism. For example, if a buyer wants to buy virtual digital currency, The platform will "introduce" all sellers who want to sell virtual digital currencies to buyers. Buyers will transfer legal currency to sellers offline through banks or WeChat or Alipay. After receiving the money, online sellers will contact the trading platform. Confirm. After confirmation, the trading platform will put the seller's virtual digital currency into the buyer's "wallet", and a legal currency transaction ends. In summary, from an offline perspective, the buyer gave the seller a legal currency. Online, the seller gives the buyer a virtual digital currency. The trading platform does not participate in the transaction during the entire process and does not charge any handling fees. In essence, the trading platform is not involved. Even if it is matched by the trading platform, other In essence, it is still an over-the-counter transaction, which is no different from "paying money with one hand and handing coins with another" between individuals. Therefore, when determining whether an individual's OTC behavior constitutes a crime, especially whether it constitutes "knowingly" subjectively ", should not be distinguished by "off-site" or "on-site", but should be comprehensively determined based on transaction price, transaction volume, KYC review, chat records and other related circumstances.Third, whether individuals engaging in legal currency transactions falls within the scope regulated by Notice 924 still requires further explanation from relevant departments. Previous documents stated that "virtual currency is a specific virtual commodity", and Notice 924 did not deny this. However, according to the requirements of Notice 924, individuals can neither engage in legal currency transactions nor currency transactions, so it has The most compliant way to do some virtual digital currencies is to hoard them. This obviously conflicts with the previous positioning of virtual digital currencies as specific virtual commodities. Therefore, if personal legal currency transactions are completely prohibited, does it violate higher standards? level of laws or administrative regulations? At the same time, the 924 notice mentioned "carrying out the exchange business between legal currency and virtual currency, and the exchange business between virtual currencies." Does general currency-to-crypto transactions and legal currency transactions between virtual digital currency enthusiasts count as engaging in a "business"? In particular, can currency transactions between players be considered a civil act of bartering? It also needs to be clarified through explanations from relevant departments or relevant judicial precedents. 2. The idea of ​​​​defending innocence for currency OTC suspected of committing crimes. The "Criminal Law Amendment (9)" adds the crime of assisting information network criminal activities, that is, knowing that others use information networks to commit crimes, providing Internet access and server hosting for their crimes. , network storage, communication transmission and other technical support, or providing advertising promotion, payment and settlement and other assistance are independently criminalized. In the criminal law academic circle, the crime of helping and trusting is considered to be the principal offender of the accomplice. The author believes that in the practice of defense, the currency circle OTC is suspected of helping the crime, which mainly involves the helping behavior of "payment and settlement". The focus of the innocence defense for the crime of helping the letter mainly focuses on whether the criminal suspect is "knowingly", that is, whether the criminal suspect There is subjective intention to commit a crime. For the case-handling agencies, their preconception of guilt will lead to discrepancies between the confessions of some suspects and the actual situation, or they may be induced to make statements such as "I roughly know the source of the money." "Unjustified" is a confession in which the suspect thinks "nothing is wrong" but can actually be found to have subjective criminal intent. Therefore, the defender should combine the following specific circumstances to defend the suspect's lack of criminal intent.The first is whether individual OTC merchants have fulfilled sufficient KYC obligations. During the transaction process, individual OTC merchants should first clarify who the transaction object is. It is not enough to know who the transaction object is. It is also necessary to determine whether the transaction person and the bank card holder are consistent. In practice in the currency circle, video authentication is usually adopted, that is, the other party is required to hold their ID card and bank card to record a video. The content is usually "My name, ID card, and bank card belong to me, and the source of my funds is legal and legitimate." , and are willing to admit any legal liability." In this way, individual OTC merchants can determine the basic situation of the counterparty with which they are trading. It should be considered that individual OTC merchants have fulfilled their prudent KYC obligations. After all, individual OTC merchants are just ordinary individuals. Without the many inquiry systems of judicial authorities, it is impossible to further verify the counterparty. The defender believes that if an individual OTC merchant has fulfilled its KYC obligations and can provide relevant information about the other party during the investigation by the case handling agency, it should be determined that there is no subjective criminal intention. The second is whether the transaction price obviously deviates from the market conditions. Many case-handling agencies believe that the transaction prices of individual OTC merchants are often slightly higher than market prices during transactions, and therefore believe that individual OTC merchants have criminal intent. This also reflects that the case-handling agencies do not have a deep enough understanding of OTC in the currency circle. First of all, there are differences in the legal currency transaction prices of trading platforms. Taking the fiat currency transaction prices in the Huobi app as an example when the author wrote this article, the lowest price of USDT was RMB 6.58 and the highest price was RMB 6.61, with a difference of RMB 0.03. As the public security organs gradually deepen their crackdown on "two cards", the situation of frozen cards in fiat currency transactions in the currency circle is becoming more and more serious. Mainstream trading platforms such as Huobi app have launched so-called "blue shield merchants", that is, with high KYC certification, For merchants with good reputation, the price of such merchants will be more expensive, even 0.05 yuan more expensive than the price of normal platform users. Therefore, the defender believes that as long as the transaction price does not obviously violate the market conditions, the criminal suspect cannot be determined to have subjective intention because the transaction price is higher than the market price. The vast majority of individual OTC merchants are mainly engaged in the "inverted U" business, that is, they buy USDT in RMB at a price slightly lower than the trading platform, and then sell USDT at a price slightly higher than the trading platform. This process is It's called "inverted u", and what it actually earns is the difference of a few cents between buying and selling.The author once represented some OTCs in the currency circle who were suspected of committing crimes, covering up, and concealing criminal proceeds. The transaction price of some OTC merchants was a few cents or more higher than the market price. In this case, if the OTC merchant argued that he It is difficult for the court to accept this defense of ignorance of the illegality of the other party's source of funds. After all, a normal OTC merchant should know the market conditions, and a normal counterparty cannot "give away money" for no reason. Many investigators believe that since they can match purchases and sales on the trading platform, why do they still need to find off-site OTC merchants? They believe that OTC merchants have criminal intent. In fact, to a large extent, this is also a helpless move in the currency circle. The author is also involved. For digital currency transactions, the current legal currency transactions, especially the process of exchanging digital currencies for RMB, are extremely common in having their cards frozen. Some people have calculated that the card freezing rate is over 30%, which is a very exaggerated figure. Therefore, both parties to the transaction must ensure safety. , if your card is not easily frozen, you can only seek more familiar and reliable OTC merchants for transactions off-site. Even if the prices of these OTC merchants are slightly higher than those of the trading platform, you can only make this choice for safety. After all, if there are cheaper Among reliable merchants, who would choose the more expensive one? Therefore, if the transaction price does not seriously deviate from the market conditions, it cannot be determined that the individual OTC merchant has subjective criminal intent just because the transaction price deviates slightly from the market conditions. The third is whether the necessary review has been carried out on the other party's transfer bank card. Take the sale of USDT as an example. As an individual OTC merchant, in addition to the transaction price, what you are most concerned about is whether the source of the other party's money is legal and whether your card will be frozen due to transaction behavior. Therefore, the vast majority of individual OTC merchants are most afraid. is receiving black money. At present, the common trading habit in the industry is to require the other party to provide bank transaction records. If the transaction records are less than one month, the transaction will usually not be continued. Transaction flow alone is not enough. You also need the other party to use a bank card to transfer money to your WeChat account, and then use WeChat to withdraw funds to the bank card. This is used to prove that the card is a "live card" and at the same time, the other party's WeChat account must be recognized. Whether there is any abnormality in the signal, individual OTC merchants will dare to continue legal currency transactions only if all the above-mentioned transaction risks are eliminated.If the criminal suspect has performed all the above tasks, how can it be determined that he has the subjective intention to collect black money? How can it be considered that it subjectively provides payment and settlement for criminal acts? Fourth, the size of the transaction has no relationship with whether there is subjective mens rea. Many case investigators believe that the transaction amount of individual OTC merchants is too large and there is subjective criminal intent. The basic logic is that it is inconsistent with objective logic for individual OTC merchants to conduct such large transactions without asking the source of funds. In essence, the currency circle is a relatively closed circle. There are many players who hold huge amounts of virtual currency assets, and there are also many "Ten Thousand Coin Hous". You must know that the value of 10,000 Bitcoins is about 3 billion yuan. Buying a mining machine , paying electricity bills, paying wages to employees, etc., all require the conversion of a large amount of virtual digital currency into RMB. Large-value transactions are widespread in the currency circle OTC. Therefore, the size of the transaction amount cannot be used as one of the factors to determine that the criminal suspect has subjective criminal intent. one. 3. The defense idea of ​​misdemeanor for those suspected of supporting trust crimes in currency circle OTC. Since the crime of supporting trust is a misdemeanor with a sentence of less than three years, in most cases, the misdemeanor defense is also a good choice. For example, the defender believes that the basic evidence proving that the suspect is suspected of committing a crime is relatively comprehensive based on the composition of the persons subject to compulsory measures, the items seized at the scene, and the collection of electronic evidence. In this case, blindly defending not guilty will lead to crime. The suspect was treated more seriously. In this case, when meeting the criminal suspect, the relevant laws and regulations should be explained clearly. In addition to the crime itself, the relevant content of the procedural law should be explained so that the criminal suspect can find the solution based on his actual situation. A better "way out". The vast majority of people in the currency circle have relatively weak legal awareness, and some criminal suspects behave in very extreme ways, blindly resisting the investigation, not making truthful confessions, missing the opportunity to be released on bail pending trial, and not approving arrest. In this case, they will often be sentenced to death later. punishment. For cases where there is indeed evidence to prove the suspected crime, the defender should prepare detailed interview transcripts during the interview that can prove the criminal suspect's attitude of admitting guilt and accepting punishment, so as to prevent the criminal suspect's subjective attitude from being well expressed in the transcripts of the case handling agency. In addition, it is necessary to determine the amount of illegal income with the criminal suspect and actively refund compensation. When the case is submitted for approval of arrest, the above materials are submitted together, which can often win the result of not approving the arrest "without the need for arrest".4. Disposal of non-involved property suspected of crimes in the currency circle OTC and other matters. On December 5, 2020, at the seminar on criminal issues in the field of Internet finance, the author introduced relevant cases about the currency circle and judged the case-handling agencies to crack down on crimes in the currency circle. The intensity of crime will become increasingly greater, as will the recovery and confiscation of digital currencies involved. On January 25, 2021, China’s Supreme People’s Procuratorate held a press conference on “Giving Full Use of Procuratorial Functions to Promote Cyberspace Governance”. Zheng Xinjian, director of the Fourth Procuratorate of the Supreme People's Procuratorate, said at the meeting that "the black and gray Internet products have formed an ecosystem and continued to provide blood and food for cyber crimes, which has become an important reason for the frequent occurrence of cyber crimes. The procuratorial organs are playing an important role in combating and controlling cyber crime." Regarding gray property, the first is to highlight the key points of punishment and cut off the chain of interests. The second is to strengthen the application of property penalties, increase the cost of crime, prevent criminals from benefiting from crime, and achieve "cutting off wealth and blood". The third is to combine the performance of prosecutorial duties , and promote comprehensive management." This focused on the issue of the application of property penalties. However, it is very easy for local case-handling agencies to seize, freeze, and confiscate the legal property of those involved in the case beyond reasonable limits. Prior to this, many criminal judgments in the currency circle also reflected that the criminal suspects and defenders’ arguments and defenses that some of the properties involved in the case were legal property failed to receive support from the court. For example, in the plustoken case that had a wide impact on the currency circle, (2020) Su 09 Criminal Ruling No. 488 shows that the Intermediate People’s Court of Yancheng City, Jiangsu Province held that: “There is an issue with the identification of Chen Bo’s legal property. After investigation, Chen Bo did not provide relevant clues that he legally owned more than 700 Bitcoins. Or materials, and the plustoken platform is recognized as a pyramid scheme activity platform. The digital currency invested in the platform is used for the capital operation of the pyramid scheme system and should be confiscated as property used in pyramid scheme crimes." In the currency circle-related cases represented by the author, an individual It is not uncommon for legal property to be excessively frozen and seized, which also puts forward newer and higher requirements for defenders, that is, how to protect the legitimate rights and interests of criminal suspects and how to prevent personal legal property from being inspected, detained, frozen or even eventually confiscated. This is also The new field of legal services in criminal cases is summarized as "criminal reverse business". The demand for this legal service is particularly important in the currency circle.The reason is that some case-handling agencies handle currency cases with colored glasses. They preconceptionally believe that as long as it is a currency-related case, there is no legal property. Even if the suspect can prove that it is legal property, he will still be punished with a penalty. . When handling relevant cases, the author will collect a large amount of evidence regarding the legal property of the criminal suspect to form a complete chain to prove that the relevant digital currency is the legal property of the individual. For example, some criminal suspects earned digital currency from trading. In this case, all transaction records on the exchange can be retrieved by sending an email to the exchange, and the transaction process can be systematically described in legal language and submitted. Case handling agency. Some criminal suspects obtain huge profits by investing in the primary market. This requires actively contacting the project side, issuing relevant supporting materials, and obtaining evidence such as chat records, investment contracts, and transfer records in and out of the chain to support it. . Some criminal suspects obtain digital currency by investing in mining machines for mining. They need to obtain mining machine purchase contracts, mining machine operation and maintenance contracts, mining machine maintenance records, electricity bill payment records, and digital currency output records, etc., supplemented by Relevant chat records and other content to prove the generation process of digital currency in legal assets. In practice, even if all the above evidence can be obtained and submitted to the case-handling agency, it will still be difficult to unblock it in time, and there is still a risk of being fined and confiscated. Therefore, it is also necessary to prove that the digital currency in the personal legal assets has no relationship with the suspected criminal offense. In other words, personal legal property has not been used to finance criminal activities. During the argumentation process, it needs to be analyzed based on specific crimes and different circumstances of individual cases. Due to limited space, I will not go into details here. 5. Conclusion It is relatively common for OTC in the currency circle to be suspected of helping people commit crimes. Since the crime itself is a misdemeanor, many suspects have given up looking for professional lawyers to defend themselves. Based on the characteristics of this type of crime, the author believes that the first step is to understand through interviews. Whether the criminal suspect has subjective criminal intent and objective criminal behavior, and based on this, accurately choose the direction of innocence defense and misdemeanor defense. We can neither blindly plead with misdemeanor to make a party who should not be found guilty of a crime have a lifelong criminal record, nor can we A blind defense of innocence closes the two doors to the parties involved in not approving the arrest and deciding not to prosecute.

ICO stands for Initial Coin Offering, which was defined as "Initial Coin Offering" in the 94 Announcement. The project party ICO mentioned in the title of this article can be understood more broadly, including token issuance, token financing and other activities, as well as some NFTs. , GAMEFI, Metaverse and other project parties’ disguised ICO activities, including so-called IEO, IMO, IFO and other variations. The previous series of articles have introduced the behavioral patterns and typical scenarios of ICO, so I won’t go into details here. If you don’t understand, you can read the previous articles. The following focuses on a brief introduction to the key points of defense for ICO activities suspected of illegal business operations. First of all, we need to understand why many ICO cases are often investigated for illegal business crimes in the early stages of investigation. According to Article 225 of the "Criminal Law of the People's Republic of China": "Whoever violates state regulations and commits any of the following illegal business activities, disrupts market order, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and concurrently or solely A fine of not less than one time but not more than five times the illegal income shall be imposed; if the circumstances are particularly serious, the person shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal income or property may be confiscated.” ICO cases involve a wide range of people and geographical spans, making it impossible to The specific situation of each investor must be ascertained. Therefore, from the perspective of the judicial authorities, if criminal liability is ultimately pursued for illegal business crimes, confiscating property is often the most cost-effective way to save judicial costs. However, based on the author’s experience in handling cases, various regional procuratorates generally believe that there is no legal basis for ICO activities suspected of illegal business crimes. In practice, very few people are ultimately convicted and punished for illegal business crimes, including all ICO cases that the author has recently represented. No arrest or transfer for prosecution was approved for illegal business operations. Therefore, as a defender, when applying for approval of arrest and transfer for review and prosecution, full legal argumentation with the prosecutor handling the case can often achieve a better result, that is, the arrest will not be approved, or the crime will be changed to a lighter charge. 1. A commonplace statement - the precondition for the crime of illegal business is "violation of national regulations" and the existing relevant regulatory policies, whether it is the 94 Announcement or the 924 Notice, can only be regarded as departmental regulations at most. Although the new judicial interpretation of illegal fund-raising includes the behavioral model of "virtual currency trading", the effectiveness of this judicial interpretation can only apply to the crime of illegal fund-raising and does not apply to the crime of illegal business operations.According to the "Notice of the Supreme People's Court on Relevant Issues Concerning the Accurate Understanding and Application of "State Provisions" in Criminal Law": "2. In the criminal trial work, the people's courts at all levels shall conduct "violations of state provisions" involved in relevant cases. Determination must be accurately determined in accordance with the provisions of relevant laws, administrative regulations and judicial interpretations. If the provisions are not clear, they must be determined carefully in accordance with the requirements of this notice. Violations of local regulations and departmental rules shall not be determined as "violations of national regulations" ". If there is any dispute as to whether the defendant's behavior "violates state regulations", it should be regarded as a matter of legal application and submitted to the Supreme People's Court for instructions step by step." Therefore, according to this provision, violations of local regulations and departmental rules shall not be determined. For "violation of national regulations", if there is a dispute, the Supreme People's Court is requested for instructions. However, in practice, the author has not encountered any situation in which the Supreme People's Court is requested for instructions. 2. Article-by-item analysis - ICO scenarios do not comply with the scope of the illegal business crime. The author believes that the project party’s ICO behavior does not comply with the relevant circumstances stipulated in the illegal business crime. According to the Criminal Law, among the four types of illegal business crimes, the first two are "(1) Operating franchises, monopoly items or other restricted items stipulated in laws and administrative regulations without permission" and "(2) Buying and selling import and export licenses Certificates, import and export certificates of origin, and other business licenses or approval documents stipulated in laws and administrative regulations" are obviously not related to ICO activities. Regarding "(3) Illegal operations of securities, futures, and insurance businesses without the approval of the relevant national competent authorities, or illegal activities of fund payment and settlement business", first of all, the author believes that there is no illegal operation of securities in ICO projects without the approval of the relevant national competent authorities. , futures, insurance business, the so-called currency issuance, from the appearance, the currency itself has nothing to do with securities, futures, and insurance. Even if it is considered that the ICO project issues currency and is listed on the exchange, then as a single project, it is impossible to form Regarding the above-mentioned business, of course, whether the exchange's behavior is regulated by this clause requires further discussion. Secondly, the author believes that ICO projects do not involve illegal fund payment and settlement business.At first glance, the project party raised funds, issued coins, listed on the exchange, established currency-to-crypto trading pairs, and realized currency-to-crypto transactions or even currency issuance transactions. It seems to be in line with the appearance of "fund payment settlement", but according to relevant judicial interpretations, The fund payment and settlement business regulated in the crime of illegal business operations has its specific scope. According to Article 1 of the "Interpretations on Several Issues Concerning the Application of Laws in the Handling of Criminal Cases of Illegal Fund Payment and Settlement Business and Illegal Trading of Foreign Exchange", the following situations are: (1) Using acceptance terminals or online payment interfaces to conduct fictitious transactions or fraudulent transactions; Payment of monetary funds to designated payers through illegal methods such as prices and transaction refunds. This clause mainly refers to the situation of payment by designated payer through false transactions. (2) Illegally providing services for others to cash out the company's bank settlement account or transfer the company's bank settlement account to a personal account. This clause mainly regulates the behavior of corporate accounts being cashed out and public-to-private transfers. (3) Illegally providing check cashing services to others. The literal meaning of this clause is not difficult to understand without too much explanation. In short, it has no connection with the ICO behavior model. (4) Other situations of illegally engaging in fund payment and settlement business. Although this clause is a general clause, it cannot be interpreted in an expanded manner, and the scope of regulation should be equivalent to the behavior patterns and situations of the above three clauses, and it cannot regulate all fund payment and settlement behaviors. 3. Determination of illegality - whether it belongs to other illegal business behaviors that seriously disrupt the market order. In practice, illegal business crimes are often criticized as "pocket crimes" by legal professionals. Relevant experts and scholars have been calling for it on various occasions. The reason is that the law The provisions in the article regarding "other illegal business activities that seriously disrupt market order" are too broad, and many cases often use this provision to hold defendants criminally liable. In fact, relevant judicial interpretations also have strict regulations on the application of this clause. According to the "Notice of the Supreme People's Court on Relevant Issues Concerning the Accurate Understanding and Application of "State Provisions" in Criminal Law": "3. People's courts at all levels must strictly grasp Article 225 of the Criminal Law in hearing cases of illegal business operations in accordance with the law. Scope of application of paragraph (4).Whether the defendant's behavior falls within "other illegal business activities that seriously disrupt market order" as stipulated in Article 225 (4) of the Criminal Law. If the relevant judicial interpretation does not clearly provide for it, it shall be regarded as a matter of legal application and shall be dealt with step by step. Request instructions from the Supreme People's Court. "Based on the current situation, especially when the judicial authorities handle the suspected illegal business crime of ICO, they are unable to provide sufficient evidence on how the project party's behavior seriously disrupted the market order, and there is currently no effective support from the prerequisite law. Therefore, in accordance with the " According to the requirements of the Notice, if it is believed that ICO behavior seriously disrupts social order and is suspected of illegal business operations, it should request instructions from the Supreme People's Court level by level.

I don’t know if Web 3.0 will come, but Criminal Case 3.0 in the currency circle is definitely coming. I started to specialize in cryptocurrency criminal defense in 2019. My general intuitive feeling is that before plustoken cases, they can be called cryptocurrency criminal cases 1.0. At that time, the public prosecutors and law enforcement officers were repulsive to currency-related cases, so the defense work was relatively It's easy. There are many cases where arrests and prosecutions are not approved. The Plustoken case is a turning point. For a period of time in the future, it can be called the currency criminal case 2.0. It has two significant characteristics. First, a very few areas are "enthusiastic" about currency-related cases, and second, the investigators themselves have a certain understanding of currency. , I often talk on the phone with case investigators during defense. Judging from the results of the cases I have handled, innocence defense can still have a good effect in general, especially in the transfer review and prosecution stage. In many cases, I have won the decision not to prosecute due to insufficient evidence. . One year after the "924" notice was issued and fermented, starting from the second half of 2022, currency circle criminal cases have ushered in the 3.0 era, with more investigation companies than project parties. As the saying goes, "the currency circle dies in the currency circle." , coupled with the introduction of new judicial interpretations of illegal fund-raising, the application of the law is constantly being broken, and the connection between executions and case handling has left little room for innocence defense. Of course, this is also related to the cases I represent, including project parties, exchanges, and hackers. Coin theft and job-related crimes in the currency circle are the main crimes, and some traditional cases such as trusting, concealing, and non-trusting have long been discontinued. I have always believed that the role of a lawyer is to assist the client in finding the best solution, and that the client’s freedom should not be sacrificed for the sake of innocent defense. In the 3.0 era of criminal cases in the currency circle, no matter how many complaints lawyers have, no matter how much they want to complain (I will write a special article later so that this somewhat technical article can survive), we should still fight for the rights and interests of the parties within the legal framework. If If there is no room for a crime, then we should actively seek the benefits of property punishment, so I summarized this article, which is the opinion of many cases that I have represented in many places and has been adopted by the procuratorate and the court. I hope it can be helpful for the handling of currency-related cases. helped. 1. Legal basis (people in the industry can skip this part directly) China's criminal law and criminal procedure law do not clearly stipulate whether the reasonable costs of crimes should be deducted. However, through relevant legal documents, we believe that some crimes are applicable during the application process. Illegal gains should be accurately calculated and the "profit theory" should be adopted. For reasonable costs, the deduction should be reduced and the deduction should be deducted.1. The crime of illegal business operations. According to the "Research Opinions of the Research Office of the Supreme People's Court on the Identification of "Illegal Gains" in the Crime of Illegal Business", relevant departments solicited opinions from the Research Office of the Supreme People's Court on the issue of the identification of "illegal gains" in the crime of illegal business. The research office of the Supreme People's Court believes that "illegal gains" in the crime of illegal business should refer to the amount of profit, that is, all the income obtained by the perpetrator from illegally producing and selling goods or providing services (i.e., the amount of illegal business) , the remaining amount after deducting the reasonable expenses directly used for operating activities." 2. The crime of illegally absorbing public deposits. According to the new judicial interpretation of illegal fund-raising, the amount of fund-raising fraud... advertising fees, intermediary fees, handling fees, kickbacks paid by the perpetrator to carry out fund-raising fraud activities, or used for bribes, gifts, etc., shall not be deducted. We believe that this judicial interpretation focuses on prohibiting the deduction of reasonable expenses for the crime of fund-raising fraud. From another perspective, it should be considered that reasonable expenses for the crime of illegally absorbing public deposits should be deducted. Of course, the bribery, Expenses such as gifts are difficult to consider as reasonable expenses. 3. Other judicial interpretations supporting the "profit theory" of illegal gains: First, the Supreme People's Court issued a reply to the Hubei Provincial Higher People's Court in 1995 on "How to Determine the "Amount of Illegal Gains" in Criminal Cases of Producing and Selling Counterfeit and Substandard Products" "Clearly: "The 'amount of illegal income' stipulated in the "Decision of the Standing Committee of the National People's Congress on Punishing the Crime of Producing and Selling Counterfeit and Substandard Products" refers to the amount of profits made from the production and sale of counterfeit and shoddy products." Second, Article 17 of the "Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications" issued by the Supreme People's Court in 1998 clearly states: "The 'amount of illegal income' referred to in this interpretation refers to the amount of profit." Third, Article 10 of the "Interpretations on Several Issues Concerning the Specific Application of Laws in Criminal Cases of Handling Insider Trading and Leaking Insider Information" issued by the Supreme People's Court and the Supreme People's Procuratorate in 2012 clearly states: "...illegal gains refer to those obtained through insider trading activities." Gain profits or avoid losses.” (Online excerpt) 4.MLM cases are a common crime in the cryptocurrency industry, but judging from the author’s experience in handling such cases, the defendants are held accountable based on the amount involved, so the issues discussed in this article are not involved. 2. Reduction of illegal income 1. Repurchase. Based on compliance with the provisions of the white paper or in order to stabilize the currency price, project parties usually promise to repurchase at a percentage of the profit. From the user's perspective, whether it is to reduce handling fees or to hold the currency to earn interest, the act of holding the currency It is necessary, so the defender believes that although this part of the profit was briefly obtained, it was immediately spent and should be deducted from the illegal income. (Of course, in actual defense, this part still needs to be discussed in detail in order to be adopted by the judicial authorities, the same below) 2. Destroy. In essence, it is similar to repurchase. You can understand it without going into too much detail. Common deflation methods are designed to maintain currency prices. Some of them have been written into the contract. In short, the project party cannot obtain this benefit at all. It should be deducted from the illegal income. 3. Commission rebate. To a certain extent, rebates have an advertising nature and should be deducted from reasonable expenditures. However, in terms of common operations in the industry, rebates are also stated through procedures and mechanisms. The exchange cannot obtain this benefit and should be included in illegal gains. Nuclear reduction. 4. Pledge. In the new judicial interpretation of illegal fund-raising, the act of "virtual currency trading" has been added. However, not all virtual currency transactions constitute non-attracting. From the perspective of the four characteristics of "non-attracting", the currency circle is deemed to be non-attracting and "inducement and inducement". "Practice" is the most critical. Some projects only promise benefits if they are pledged. Therefore, the calculation of illegal income should be based on the pledged amount, and everything else should be reduced. 3. Deduction of reasonable costs 1. Labor costs. In any project, labor costs account for a large part of the cost expenditure, so it is of great significance to strive for the deduction of this part. There are many existing cases proving that in non-abuse and business crimes, the deduction of labor costs has been obtained. Support indicates that in related criminal activities, labor costs are indeed reasonable and necessary expenditures, including wages, social security, provident funds, year-end bonuses, etc. In practice, project dividends are often difficult to obtain support. 2. Housing rental costs. Like labor costs, house rental costs are also reasonable and necessary expenses for the project. Once paid, they are lost forever. Therefore, when calculating illegal income, house rental costs are also a part that should be deducted.3. Service fees. The service fee covers a wide range of content, mainly including servers, tools, SMS, and other categories. Commonly used servers include Alibaba Cloud, Yunpian.com AWS, Clouldflarle, etc., which are the core equipment that supports the operation of the exchange. Therefore, The cost of renting a server should be deducted. In addition, SMS services are also essential for the interaction between the exchange and users. In addition, necessary tools include Zendesk, Travis, Google, Ipinfo, Coveralls, Github, Crowdin, etc. 4. Purchase mining machines and pledge coins. Some projects, such as computing power mining, pledge mining, etc., require the purchase of a large amount of mining equipment, and some require a mining machine + pledge currency model to produce coins. In this case, the project party must purchase equipment in order to operate normally. and pledged coins are necessary expenses, so this part of the expenses should be deducted. 5. Marketing advertising and public relations expenses. If a project wants to gain popularity and visibility, it needs to invest a lot of advertising expenditures, including project public relations expenses, etc., to attract users to participate. Therefore, this expenditure should be considered reasonable and necessary expenditure. 6. Intermediary service fees. Mainly refers to related work completed by third-party companies, such as security audits, KYC certification, outsourcing services, etc. 7. Office costs. In order to maintain the normal operation of the project, large office costs are required, such as computers and other hardware equipment, house decoration and design, electricity bills, etc. In practice, some judicial authorities do not adopt this opinion on the grounds that although expenditures have been made on hardware equipment, house decoration, etc., they have not been lost. When it comes to mining projects, electricity expenses account for a large proportion, and the possibility of adoption by judicial authorities is higher. 8. Based on the necessary foreign investment for the project. Foreign investment can also be understood as advertising expenditures, but in practice judicial authorities often do not adopt this approach. 4. Other issues that should be noted 1. Whether it is the deduction of illegal income or the deduction of reasonable costs, it needs to be supported by objective evidence. Regarding the understanding of evidence, it is recommended to communicate with the judicial authorities more about evidence standards. 2. When calculating illegal gains and reasonable costs, since legal currency and virtual currency are involved, and legal currency involves RMB and foreign currencies. In addition, the exchange rate has fluctuated greatly in just over half a year. As a lawyer, you should propose a plan that is more beneficial to the client and persuade the judicial authorities to support it. For example, the exchange rate of RMB against the US dollar differs from the lowest price displayed on different official websites. Therefore, the official website price that is most beneficial to the parties must be submitted to the judicial authorities.3. When disposing of virtual digital currency, focus on whether the OTC price has a positive or negative premium to the RMB exchange rate, and choose a favorable disposal method. When settling foreign exchange for overseas disposal and returning to the country, you can strive for a higher price based on the foreign exchange quotation, but the calculation will basically be based on the foreign exchange purchase price. 4. The law is lagging and limited, and is applied by specific case handlers. Especially when fighting for property rights in cases of guilty plea and punishment, lawyers must do errands frequently, communicate frequently, and come up with well-founded plans in order to obtain the greatest possible benefit for the parties. rights and interests. I always want to talk about something more, maybe later. About the author Liu Yang is one of the top fifteen digital economy lawyers recommended by LEGALBAND in 2022. He is the deputy secretary-general of the National Criminal Committee of Beijing Deheng Law Firm and has a master's degree in software engineering from Peking University. He has been engaged in legal work such as public security and lawyer for fifteen years. Focusing on criminal business in the subdivided areas where network, blockchain and digital technology are intertwined with finance, he is a data security consulting expert of the National Engineering Laboratory of Cybersecurity Emergency Technology and deputy secretary-general of the Cyberspace Security and Legal Affairs Committee of the Beijing Computer Society. Contact information: 13581751329. Lawyer Liu Yang’s team members at Beijing Deheng Law Firm generally have many years of practical background in judicial agencies, continue to pay attention to the pan-crypto field, and are good at representing currency-related fraud with certain justifications, illegal fund-raising, organization and leadership of pyramid schemes, illegal use of information networks, and assistance with information networks. Criminal defense in criminal activity cases, currency-related civil and commercial arbitration, industry compliance and corporate governance in emerging fields such as Yuanverse, NFT, and web3.0. ☆Reprinting without permission is prohibited, and editing of short videos is prohibited

[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, it is necessary to define and classify them so that various crimes in the criminal law can be applied to regulate illegal and criminal activities. But the key point is that virtual currency is the product of blockchain technology, which has multiple characteristics such as concealment, property, data, and global circulation. Moreover, because of its decentralization, it is difficult to be controlled by relevant departments and is not subject to my country's relevant laws and policies. The document recognizes its currency status, so it is extremely difficult to define virtual currencies. A variety of views have been put forward by academics and practitioners, 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 crime of property infringement or a crime of data, which has important judicial practical significance. This article will summarize the existing qualitative views on the properties of virtual currencies to help readers get into virtual currencies and understand their complex and profound connotations. 1. The turmoil is rising - the dispute over the property attributes of virtual currency. Virtual currency is highly electronic electromagnetic data generated through complex algorithms based on modern information technology and cryptography. It has anonymity, decentralization, global circulation, etc. Characteristics, it has been widely disseminated as soon as it was born, and it has become one of the types of currencies that can be traded. Currently, there are a variety of virtual currencies that can be exchanged with legal currencies, such as Tether. Because virtual currencies have 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 will use virtual currencies to make illegal money. In order to deal with the risks caused by the popularity of virtual currencies in the financial world, my country has issued a series of normative documents such as the "Notice on Preventing Bitcoin Risks" since 2013, which defines domestic virtual currency transactions as illegal. There are also many such normative documents. An important basis for supporting the concept of property attributes of virtual currency. Since then, domestic virtual currency-related crimes and virtual currency criminal crackdowns have shown an ebb and flow. Illegal acquisition of virtual currency is a typical crime involving virtual currency, but in practice, the sentences for illegal acquisition vary.The main reason is that there is controversy over whether virtual currency is property within the meaning of criminal law. Different answers to this question have led to different judicial handling methods. Generally speaking, there are several views on the characterization of virtual currency: first, the illegal acquisition of virtual currency, because virtual currency has property attributes and is property within the meaning of criminal law, which constitutes the crime of theft; second, the illegal acquisition of virtual currency Behavior, because virtual currency is not property and is electromagnetic data, it constitutes the crime of illegally obtaining computer system data; thirdly, illegally obtaining virtual currency constitutes a crime, and simultaneously commits the crime of theft and illegally obtaining computer information system data, which is an imaginary competition. Together, choose one of the serious crimes and punish them. Different scholars and practitioners have different reasons and arguments for their discussions, and some people advocate judging the nature of virtual currencies according to the time period when relevant policy documents are issued. The following will focus on academia and practice, summarizing the existing opinions and reasons respectively. 2. Academic debate - Exploring the property attributes of virtual currency As early as 2015, Professor Zhang Mingkai, a leading legal scholar, published the article "The Behavioral Nature of Illegal Acquisition of Virtual Property" in the journal "Law Science", arguing that illegal acquisition of other people's virtual property will The view that an act is deemed a computer crime cannot handle cases where computers are not used to illegally obtain other people’s virtual property, and has obvious limitations. Because virtual property has the possibility of management, transfer, and value, it is reasonable to identify the illegal acquisition of other people’s virtual property as a property crime. Liu Mingxiang, a professor at the Law School of Renmin University of China, also discussed the nature of theft of virtual property in "Law" in 2016, but held a different view. He used virtual property in online games to demonstrate that since the promulgation of the Criminal Law Amendment (7), theft of online virtual property undoubtedly meets the constituent elements of the crime of illegally obtaining data from computer information systems, and therefore should definitely be punished with this crime. Justification of execution. The academic discussion was quite interesting. Later, Yao Wanqin, associate professor of the School of Law of Southwest University of Political Science and Law, published an article "A doctrinal analysis of the qualitative behavior of stealing online virtual property - and discussion with Professor Liu Mingxiang", refuting Professor Liu Mingxiang's views and clarifying that the Internet Virtual property is an object of real rights in civil law, and belongs to the category of property in criminal law, and it is in the form of intangible objects. It supports the specific determination through the "sentencing rules for amount-based theft" and the "sentencing rules for circumstance-based theft". The value of online virtual property theft and the sentencing range.At the same time, teachers Chen Luolan from the School of Liberal Arts of Zhejiang A&F University and teacher Ren Yanjun from the School of Criminal Justice of Henan University of Finance and Economics respectively demonstrated the essential attributes and characteristics of virtual property, supporting that it constitutes property protected by criminal law. The former believed that illegal theft of virtual currency constituted imagination. Competing crimes, the latter considers the crime of theft to be a separate crime, and when calculating the amount of the crime, it is more appropriate to use the average transaction price on the day when the crime is committed as the basis. At the same time, teachers Guo Zhilong from China University of Political Science and Law and Yang Zhiqiong from Southeast University both expressed concerns about the expanding crime of illegally obtaining computer information system data, believing that the crime covers too wide a range of data and can also cover already protected data in criminal law. Property interests, as well as property interests that are not originally protected by criminal law, may become a new type of "pocket crime." It can be seen that most scholars still support the property attributes of virtual currency and believe that it has formed a relatively mature trading system. If they simply believe that virtual currency is data, the understanding of its connotation will be too narrow, and it will also cause many legal application problems. It is not conducive to the judicial protection of victims. 3. Practical Discussion - Disputes over the property attributes of virtual currencies. The authoritative views of the academic community will provide guidance for judicial practice, but prosecutors and judges are the ones who really have contact with real cases. Therefore, judicial practitioners have no understanding of the property attributes of virtual currencies. The determination will be related to the judgment of the specific case. It is worth mentioning that many procuratorates and courts have different opinions on this issue and conflict with each other, and a unified judgment standard has not yet been formed. For example, prosecutors Wu Chunmei, Li Changlin, and Wang Xingyun of the Third Branch of the Beijing Municipal People's Procuratorate believe that the "Announcement on Preventing Financing Risks of Token Issuance" issued by seven departments including the People's Bank of China in September 2017 emphasized that virtual currencies such as Bitcoin do not have monetary attributes. Therefore, after September 2017, the trading platform's rights to Bitcoin are not recognized by the country's overall legal order, and the Bitcoin controlled by the trading platform does not have property attributes in the sense of criminal law. In September 2021, the People's Bank of China and other ten departments issued the "Notice on Further Preventing and Dealing with Speculation Risks in Virtual Currency Transactions", which has stricter controls on virtual currencies such as Bitcoin, defining virtual currency-related business activities as illegal financial activities and strictly prohibiting them. That is to say, all Bitcoin business activities on the trading platform are illegal activities, continuing the spirit of the 2017 "Announcement", and the Bitcoins controlled by the trading platform 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 illegal theft based on the release time of two key policy documents in September 2017 and September 2021. Types of crimes related to virtual currency, using financial policy as the basis for interpreting the nature of the criminal law of virtual currency, it is believed that after the time when the country increases financial control, the crime of illegally obtaining virtual currency cannot be regulated as a crime of infringement of property. The discussion on whether virtual currencies have property attributes has not subsided. In 2023 alone, Chinese prosecutors, the Supreme People's Procuratorate, the People's Court and many official media published practical articles with different views. On January 31, 2023, the article "Using Typical Thinking to Accurately Characterize the Crime of Illegally Obtaining Virtual Currency" by Associate Professor Sun Daocui and Prosecutor Wan Yijia was published on the official website of the Supreme People's Procuratorate, advocating for more detailed investigation of the criminal nature of virtual currency. For individual judgments, the judgment rules of ultimate teleology, main nature theory, and substantive judgment theory are proposed. It is also believed that the crime of illegally obtaining computer information system data does not necessarily need to be regulated for crimes that have a large amount of economic or property interests attached to the virtual currency itself. On March 22, 2023, Chen Yusu, a fourth-level senior prosecutor of the Third Prosecution Department of the First Branch of the Beijing Municipal People's Procuratorate, published an article in "China Prosecutor" titled "Illegal acquisition of virtual currencies in the perspective of the unity of legal order" "Nature Identification", it is believed that virtual currency, as a special virtual property, conforms to the characteristics of "property" and should be evaluated as a property crime object in criminal law. The state has adopted stricter control policies 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" under criminal law does not exceed the predictability of the people and does not violate the unity of the legal order. It is an appropriate interpretation in line with the current situation. This view affirms the property attributes of virtual currency and is a major turning point in discussions in the practical community. I thought that the discussion on the property attributes 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 “Determination of Illegal Acquisition of Virtual Currency” in the People’s Court Newspaper, proposing that if it is illegal The act of obtaining 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 computer information system data attributes. It also constitutes the crime of theft and the crime of illegally obtaining computer information system data. According to imagination, Co-offenders shall be punished by choosing a serious crime.If the behavior occurred after September 2017, the virtual currency at this time should not be recognized as property in the sense of criminal law and cannot be regulated as a crime of property infringement. If an actor obtains profits from the sale of Bitcoins by intruding into a computer system and modifying data, without causing substantial damage to the functions of the computer system or failing to operate normally, he shall be deemed to be guilty of illegally obtaining data from the computer information system. This view shows that the judicial practice community has not yet reached a consensus on the property nature of virtual currencies. 4. Summary of viewpoints - My opinion on the property attributes of virtual currencies. As can be seen from the above, the qualitative nature of virtual currencies has indeed caused headaches for experts, scholars and judicial practitioners. Industry leaders have interpreted the properties of virtual currency from multiple perspectives such as its data nature, transaction value, and national policy purposes. They have also expressed their opinions on whether it constitutes property in the sense of criminal law, and some have directly contradictory views. Only virtual currency, the product of blockchain technology, has such charm. Regarding the views 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, the "Announcement on Preventing Token Issuance Financing Risks" issued by the People's Bank of China and other seven departments, etc. The document prohibits exchange business activities related to virtual currencies, 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 currencies. In 2012, the Supreme People's Court issued the "Research Opinions on How to Qualify the Profits from the Illegal Sales of Game Coins Using Computers to Steal Others" and the "Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft", both of which determined that virtual property should be classified as computer-based. The judicial approach to protecting information system data denies the property attributes of virtual property to a certain extent. It is believed that if the theft of virtual property really needs to be regulated by criminal law, it can be convicted and punished according to crimes such as illegally obtaining computer information system data, and should not be punished as such. Dealing with theft. The above are the main arguments of supporters of the crime of illegally obtaining computer information system data. However, the author’s summary shows that more and more experts and scholars, whether in academia or judicial practice, affirm the property attributes of virtual currencies.The author believes that there is no need to discuss many complicated reasons as to whether virtual currency is property. We must start with the characteristics of the property itself. If it meets all the characteristics required by property, why should it be removed from the property queue? Moreover, the illegal acquisition of virtual currency is a means, and the purpose is the huge property value contained in the virtual currency. However, the criminal law only punishes the means and ignores the legal concept of implicating the offender. Although my country's existing financial policy denies the exchange activities of virtual currency, it does not completely prohibit the personal holding of virtual currency. It is an objective fact that virtual currency has exchange value and is widely circulated around the world. It cannot be because the policy does not allow it. Just ignore the basic characteristics of data and regard it as its universal characteristic, while ignoring its essential characteristics as a financial commodity. 5. Conclusion There has never been a thing that has caused such entanglement in the law as Bitcoin, causing many academic leaders and practical pioneers to roll up their sleeves and discuss for many years without reaching a unified result. But the truth becomes clearer with more debate. Only by exploring more and analyzing more, 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 decision. judgment. Finally, let us wait and see whether virtual currencies can return to the essence of virtual commodities, whether judicial decisions will be unified, whether there will be special legislation on virtual currencies in the future, and how legislation will respond to existing problems.