People's Court Daily: "Mining" condenses social abstract labor to steal virtual currency, which constitutes the crime of theft

[Case] ​​In early February 2023, the defendants Chen, Jing, Huang, Luo and others discussed and jointly invested by the defendants Huang, Luo and others, and agreed to steal USTD coins (Tether) by using contract codes. At about 15:00 on March 20, 2023, the defendants Chen, Jing, Huang, and Luo went to the company of the victim Hu in a community in Lianshui County. Huang and Jing met with the victim Hu to scan the code. Chen was responsible for the background operation, and Luo was responsible for driving. Through the pre-purchased contract code, a total of 57,307.11 USTD coins were stolen from the victim Hu, with a value of RMB 393,665.461434. After the above-mentioned defendants traded some of the USTD coins, they illegally obtained more than RMB 240,000.
[Disagreement] In judicial practice, there are disputes over the characterization of the theft of Tether. Courts in different regions mainly hold the following views on the criminal characterization of theft of virtual currency. The first view is that the virtual currency obtained by the victim after paying the price is not only a virtual commodity, but also represents the property actually enjoyed by the victim in real life, which should be protected by the criminal law and the theft should be characterized as theft; the second view is that virtual currency can only be protected as computer information system data and should be characterized as the crime of illegally obtaining computer system data; the third view is that the theft is an imaginary concurrence, and one act violates two crimes.
[Commentary] The author agrees with the third view. Based on the facts of this case, the four defendants' actions violated the crime of illegally obtaining computer system data and the crime of theft, respectively, which is an imaginary concurrence. According to the principle of imaginary concurrence and choosing the more serious crime to punish, this case should be identified as the crime of theft. The reasons are as follows:

1. Stealing virtual currency constitutes the crime of theft

The "Notice on Further Preventing and Dealing with the Risks of Virtual Currency Trading Speculation" issued on September 15, 2021 clearly stipulates that virtual currency does not have the same legal status as legal tender, and virtual currency-related business activities are illegal financial activities, and the losses caused by them shall be borne by themselves. However, the author believes that whether it is protected by law is not necessarily related to whether it has property attributes. The relevant regulations only deny its legal tender status, but do not deny the property attributes of virtual currency.
It is generally believed that as economic property, it must have value, including utility, scarcity and disposability. Scarcity is reflected in the fact that the total amount of virtual currency is constant and is not infinitely supplied. Disposability is reflected in the fact that virtual currency uses asymmetric encryption technology and exists in a "wallet" (i.e., address). After obtaining the address and private key, the virtual currency can be controlled. Utility is reflected in the fact that virtual currency, as a specific data code, must be generated through "mining", and "mining" condenses social abstract labor. In real life, virtual currency can be transferred and traded to obtain calculable economic benefits, and has use value and exchange value. Therefore, virtual currency has property attributes, and the defendant's theft of virtual currency constitutes the crime of theft.

2. Stealing virtual currency constitutes the crime of illegally obtaining computer system data

The first provision of Article 3 of the Data Security Law, which came into effect on September 1, 2021, defines "data" as "any record of information in electronic or other form". Virtual currency is generated and exists in computer networks. In terms of technical attributes, it is a string of digital combinations that exists in electronic form, and has the criminal law attributes of computer information system data. In this case, the defendant illegally stole the victim's Tether currency, and the contract code used was actually a means for the defendant to obtain administrative rights to the server through illegal means, invade the computer information system to obtain electronic data, and then transfer the possession of Tether currency. Therefore, virtual currency has data characteristics, and the illegal theft of virtual currency constitutes the crime of illegally obtaining computer system data.

III. Determination of the Amount of Stolen Virtual Currency

After determining that the theft of virtual currency is an imaginary competition of the crime of illegally obtaining computer system data and the crime of theft, the question of how to calculate the value of the virtual currency involved is faced. The author believes that since the price of virtual currency changes at any time, in practice, it should be objectively determined based on the principles of fairness, rationality and convenience. Since virtual currency is property, the illegal possession of other people's virtual currency constitutes a property crime, and the amount of loss of the victim is used as the amount involved in the case, which conforms to the basic principle of calculating the amount of property crime. However, due to the supply and demand relationship and artificial speculation of virtual currency, its price will show a large appreciation or depreciation change. Therefore, it is more reasonable to calculate the amount of virtual currency involved as the time when the defendant committed the crime rather than when the victim purchased the virtual currency. When calculating in this case, the exchange rate conversion price of the virtual currency on the overseas trading platform at the time of the crime should be used as the calculation basis.