Liu Yang: Does the new "Interpretation" have unlimited retroactive effect on virtual currency crimes?

A few days ago, the Supreme Court issued a new revision of the criminal judicial interpretation of illegal fundraising. Lawyer Liu also interpreted it at the first time. Regarding the retroactive effect of the judicial interpretation, in order to make it easier for readers to understand, it was simply summarized as follows: Because the judicial interpretation is the interpretation of the original law, not a newly created law, the judicial interpretation has retroactive effect and can be traced back to the past. In the past two days, I have also seen many public accounts publish articles talking about the settlement of accounts with the sickle in the currency circle. The new judicial interpretation can be traced back to the sickle's past behavior indefinitely. Is this really the case?

There is a view that judicial interpretation is the interpretation of legal provisions. The Criminal Law Amendment (XI) has made major revisions to the criminal law provisions on the crime of illegally absorbing public deposits and the crime of fund-raising fraud, and will come into effect on March 1, 2021. The new judicial interpretation has adjusted and revised the sentencing standards for the crime of illegally absorbing public deposits and the crime of fund-raising fraud, and will come into effect on March 1, 2022. Because of the amendment to the law, the new judicial interpretation corresponds to the Criminal Law Amendment (XI), so the illegal fund-raising through virtual currency transactions implemented before March 1, 2021 are not subject to the new judicial interpretation.

In order to respond to the above views, we should first look at what exactly has been amended in the "Criminal Law Amendment (XI)" regarding the crime of illegal fundraising?

Through the above comparison, it is not difficult to see that the changes made by the Criminal Law Amendment (XI) on the crime of illegal fund-raising are concentrated on the sentencing range, sentencing levels, application of fines, application of corporate crimes, recovery of stolen goods and reduction of losses, and no changes have been made to the objective aspects of the criminal behavior. The role of judicial interpretation is to explore the meaning of the law itself, because the Criminal Law Amendment (XI) has not significantly changed the manifestation of the crime. Lawyer Liu believes that the new judicial interpretation can be applied to cases that occurred before the promulgation of the Criminal Law Amendment (XI), that is, before March 1, 2021.

The relevant person in charge of the Third Criminal Division of the Supreme People's Court said in response to reporters' questions about the criminal judicial interpretation of illegal fundraising:

The original Article 2 of the "Interpretation" stipulated ten types of illegal fund-raising behaviors and provided a catch-all clause. The revised "Interpretation", based on the original provisions, combined with new judicial practices and new forms of crime, added new types of illegal fund-raising behaviors such as online lending, virtual currency transactions, and financial leasing to the eighth and ninth items of the article respectively. At the same time, an item "illegally absorbing funds by providing 'elderly care services', investing in 'elderly care projects', and selling 'elderly products'" was added as the tenth item, providing a basis for punishing illegal fund-raising crimes such as P2P, virtual currency , and elderly care in accordance with the law.

Since the Criminal Law and judicial interpretations have revised the conviction and sentencing standards for the crime of illegally absorbing public deposits and the crime of fund-raising fraud, which has a significant impact on the conviction and sentencing of the crime of illegally absorbing public deposits and the crime of fund-raising fraud, for acts that occurred before the implementation of the "Criminal Law Amendment (XI)", that is, acts committed before March 1, 2021, after the implementation of the new judicial interpretation (from March 1, 2022), the cases that have not been handled or are being handled should be determined according to the conviction and sentencing standards determined by the revised "Interpretation" and the principle of leniency . Because the new judicial interpretation gives a greater weight to the sentencing consideration of returning stolen goods and making compensation than before, for acts that occurred before the implementation of the "Criminal Law Amendment (XI)", if the defendant has actively returned stolen goods and made compensation , the provisions of the "Criminal Law Amendment (XI)" should be applied in accordance with the principle of being favorable to the defendant .

The Criminal Law Amendment (XI) has made major revisions to the criminal law provisions on the crime of illegally absorbing public deposits and the crime of fund-raising fraud, and will come into effect on March 1, 2021. The revised Interpretation has adjusted and revised the conviction and sentencing standards for the crime of illegally absorbing public deposits and the crime of fund-raising fraud, and will come into effect on March 1, 2022. Since the criminal law and judicial interpretation have revised the conviction and sentencing standards for the crime of illegally absorbing public deposits and the crime of fund-raising fraud, which has a significant impact on the conviction and sentencing of the crime of illegally absorbing public deposits and the crime of fund-raising fraud, for acts that occurred before the implementation of the Criminal Law Amendment (XI), cases that have not been handled or are being handled after the implementation of the revised Interpretation, the applicable criminal law should be determined according to the conviction and sentencing standards determined by the revised Interpretation, in accordance with the principle of leniency and leniency. It should be noted that for acts that occurred before the implementation of the Criminal Law Amendment (XI), if the defendant has actively returned the stolen goods and compensation, the provisions of the Criminal Law Amendment (XI) should be applied in accordance with the principle of being favorable to the defendant.

It can be seen from the above official answers to reporters' questions that the old "Interpretation" originally provided a catch-all clause for the behaviors listed in the crime of illegally absorbing public deposits. The addition of the term "virtual currency transactions" this time plays a role of emphasis in the form of listing. For behaviors that occurred before the implementation of the "Criminal Law Amendment (XI)", the general principle is to determine the applicable criminal law in accordance with the principle of following the old and lenient principles, and to apply it in accordance with the principle of being favorable to the defendant. Therefore, it cannot be considered that the new judicial interpretation is not applicable to criminal cases that occurred before March 1, 2021. On the contrary, Lawyer Liu believes that with the further clarification of the new judicial interpretation on the suspected illegal fund-raising crimes of virtual currency, and the breakthrough of determining that virtual currency belongs to "funds" in the sense of criminal law, it is conducive to solving the previous problems of inconsistency between crime and non-crime, inconsistency between this crime and that crime, and inconsistency in the application of penalties. Of course, as a defense lawyer, you should still conduct in-depth research on the crimes that should be applied to specific behaviors in terms of virtual currency transactions, whether they meet the elements of the crime, and strive for the legal rights and interests of the parties to the greatest extent, so as to achieve the correspondence between crime, responsibility and punishment.