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Last night, a piece of news touched the hearts of people involved in virtual currency. A well-known financial media broke the news: "Several insiders close to the supervision told reporters that after the central bank's "Notice" was issued, the public security, procuratorial and judicial organs are conducting research on virtual currency exchanges and mining and other related situations, exploring specific paths for conviction and sentencing, and relevant judicial interpretations are expected to be issued in due course." As soon as the news came out, many readers sent private messages to ask whether this matter was true or not. I would like to make a few comments on the descriptions and opinions of the "informed people" in the report, and do not use them as a reference for your next move.
1. The use of the word "regulation" is questionable. In my country, the issuance, operation and trading of virtual currencies are illegal (see the 2017 September 4th Announcement for details). There is no government agency that is responsible for the supervision, management and guidance of the healthy development of the digital token industry (compared to P2P, online lending had management methods and a regulatory system in those days). The September 24th Notice was indeed issued jointly by ten ministries and commissions, but its purpose was to prevent and deal with the risks of virtual currency trading speculation, and its foothold was still to protect the economic management order and personal property safety.
2. The subject of issuing judicial interpretations by the two high courts does not include the public security organs. Only the Supreme People's Court and the Supreme People's Procuratorate have the authority to issue judicial interpretations in this field. The statement in the report that "public security, procuratorial and judicial organs" issue judicial interpretations at the right time is problematic from the perspective of the subject. Judicial interpretations are not a basket, but a document that can be used to guide lower-level organs after careful consideration. In recent years, the academic community has been criticizing some behaviors of "legislating" in the name of judicial interpretations, and called for judicial interpretations to abide by the principle of legality of crime and punishment.
3. my country's criminal law follows the "principle of legality of crime and punishment". Only the National People's Congress can formulate and amend the criminal law (readers can check the issuing authority of the criminal law amendment). The court system and the procuratorial system have no right to create "whether a behavior should be punished by the criminal law", that is, they cannot create penalties, let alone arbitrarily expand the scope of penalties. The two high courts can interpret the criminal law, but they must abide by three regulations: (1) they must not exceed the possible meaning of the criminal law terms, that is, they must not exceed the range of literal expression; (2) they must not damage the predictability of the people; (3) they must strictly abide by the principle of legality of crime and punishment.
4. Unless the prior laws are amended, such as the Securities Law, the Commercial Bank Law, etc., the 924 Notice alone fails to meet the "legal hierarchy" requirements of the prior laws. The joint issuance of documents by multiple ministries and commissions is also at the level of departmental regulations, which can reflect the importance of various departments and agencies, but it does not change the hierarchy of its documents, and it is impossible to determine that a certain behavior constitutes a violation of the law in the sense of the crime of illegal business operation under Article 225 of the Criminal Law.
5. The 9.24 notice lists several crimes and forms of crimes that the Ministry of Public Security has cracked down on in accordance with the law: illegal business operations, financial fraud, money laundering, gambling, illegal fundraising, and organizing and leading pyramid schemes. Based on my experience and observations in handling cases, the incidence of organizing and leading pyramid schemes was high in the past few years, and the confiscated virtual currency has become a hot potato that is difficult to sell and cash in through legal channels; the proportion of fraud is high, and currency-related cases in various places basically have Article 266 of the Criminal Law; the crimes of illegally absorbing public deposits and fundraising fraud are rare, but they exist. Money laundering crimes will be the top priority in the next two years, and it is expected that the number of criminal cases will increase in the future. I believe that selling high-value virtual mining machines and configuring virtual currency for high-net-worth individuals in China may be suspected of money laundering. Please do not commit crimes against the wind. As for the crime of illegal business operation, my attitude is very clear. Based on the existing laws, laws and administrative regulations have not defined virtual currency operations and transactions as illegal. Currently, only departmental regulations and normative documents at the lower level have determined that the above-mentioned behaviors are illegal.
The "illegal" required by Article 225 of the Criminal Law for the crime of illegal business operation refers to the violation of laws, administrative regulations or State Council orders and other national laws and regulations, rather than departmental regulations, etc. Therefore, the current conclusion is that virtual currency business transactions should not be convicted and punished according to the crime of illegal business operation. However, if the judicial interpretation "interprets" the business operations and frequent transactions of virtual currency into a certain law, just as in almost all P2P criminal cases, the indictment will mention that the online lending platform violated the "Commercial Bank Law"... Although some new things in society have certain social hazards or infringe on certain legal interests, we cannot make analogical interpretations in order to achieve the purpose of social defense, and let the already criticized "pocket crime" really open its mouth. This is contrary to protecting people's behavioral expectations and the basic principles of criminal law. Criminal law should still be modest, and the country's heavy weapons should not be moved lightly. At present, the ban, expulsion, qualitative violation and joint law enforcement and social policies are adopted, and the risks related to virtual currency can be gradually and effectively curbed through comprehensive governance.
In the last words, we found that in the relevant articles and secondary dissemination articles, our journalist friends excerpted the views of our public account Sister Sa. We really don’t understand the hot spots and unique angles that our journalist friends want to highlight, and we were also surprised when we saw the article. We are not "insiders close to supervision". If anyone really participates in the internal solicitation of opinions on relevant regulations and judicial interpretations, they will basically sign a strict confidentiality agreement.
We have no intention of taking sides, and we are also worried that the popular law article will be taken out of context. Please do not take a few words or part of the content in the public account of the Sajie team as the final analysis and conclusion (just like you still need to see a doctor when you are sick, you cannot match the symptoms in the popular science article and prescribe medicine yourself). I implore my journalist friends and readers, if you choose the views in the Sajie article or make decisions such as surrendering yourself based on the views of this public account, please be sure to verify with us and inform us of the overall situation.
"Criminal law is the Magna Carta of good people and criminals." Law enforcement officers must abide by the "principle of legality of crime and punishment." "The relaxation of the principle of legality of crime and punishment will inevitably lead to the expansion of judicial power, thus endangering people's freedom." (Quoted from Zhang Mingkai's "Basic Position of Criminal Law" 2016) Therefore, when "using criminal law" against an industry or its practitioners, we must be cautious and not expand the scope of punishment through non-legislative means, give people stable expectations, and use wisdom and technology to properly resolve risks. At the same time, this article is also written to scholars and experts. If you are really participating in the research and judgment of relevant interpretations, please speak up for justice. It is not appropriate to evaluate virtual currency business operations as illegal business operations, and adhere to the bottom line of legality of crime and punishment. As above. Source: WeChat public account/Xiao Sa lawyer |
