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Wu Shuo Author | Guangdong Guangqiang Law Firm Lawyer Li Zemin Lawyer Han Wubin Lawyer The author exclusively authorized WuShuoBlockchain to edit and publish Recently, there have been waves of regulatory "movements" on virtual currency mining and virtual currency transactions, but there has been no formal legal document to clearly stipulate. However, the release of the Opinions (II) of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases Such as Telecommunications and Internet Fraud (hereinafter referred to as the "Opinions") has become the first judicial document to stipulate the crackdown on virtual currency transactions. This lawyer will interpret the relevant provisions of the Opinions related to virtual currency transactions one by one. 1 Those who participate in fake overseas virtual currency transactions will face penalties The third article of the Opinion stipulates that if there is evidence that the perpetrator has participated in an overseas fraud crime group or criminal gang, and has committed telecommunications network fraud crimes against domestic residents overseas, and the amount of fraud is difficult to verify, but the person has traveled abroad to visit overseas fraud crime dens for a cumulative period of more than 30 days within a year, or has traveled abroad to visit overseas fraud crime dens multiple times, it shall be deemed as "other serious circumstances" stipulated in Article 266 of the Criminal Law, and criminal liability shall be pursued for the crime of fraud in accordance with the law. This shall not apply if there is evidence that the person has traveled abroad to engage in legitimate activities. This regulation will end the "loophole" in the supervision of criminal penalties for those involved in overseas virtual currency fraud. As we all know, there are currently many servers, virtual currency trading platforms, and fund payment platforms located overseas. The main organizers and actual controllers of the issuance of virtual currency in China, as well as fraud platforms that organize virtual currency contract transactions, make it difficult for investigative agencies to find relevant evidence to convict and punish domestic personnel. The Opinion stipulates that as long as there is evidence that the perpetrator has repeatedly traveled abroad to criminal dens abroad to participate in virtual currency fraud, regardless of whether the person is in China or abroad, and regardless of his or her role, he or she can be convicted of fraud. However, this is a presumption principle. When it is applied, the premise is that the person has traveled abroad to a criminal den abroad. The criminal den here usually refers to the location of the crime, but this cannot be understood in this way here, otherwise it may cause a person who has traveled abroad to a certain country to be identified as a criminal den. Then the criminal den here should be understood as a fixed fraud crime location somewhere abroad. For this reason, the "Opinion" stipulates an exception, namely, if there is evidence to prove that the person appears on camera to engage in legitimate activities. This provision is to avoid expanding the scope of criminal dens in practice. 2 Providing bank cards, Alipay and other financial accounts to others for virtual currency crimes will face penalties Article 7 of the Opinion provides that the following acts carried out in order to facilitate others to commit crimes using information networks may be deemed as “assisting” acts as provided for in Article 287-2 of the Criminal Law: (1) purchasing, selling, or renting credit cards, bank accounts, non-bank payment accounts, Internet account passwords with payment and settlement functions, network payment interfaces, or online banking digital certificates. In judicial practice, many people sell or rent their bank cards, Alipay and other non-bank accounts to others for depositing virtual currency transactions, or even receive illegal funds and then conduct virtual currency transactions. The "Opinion" once again clarifies that such situations should be punished for the crime of assisting information network criminal activities. Prior to this, although in practice the crime of assisting in information network criminal activities was also used to convict people, the act of selling or renting one's own bank cards, Alipay and other non-bank accounts was often considered to be assistance with "payment settlement". However, in fact, the act of providing bank cards, Alipay and other non-bank accounts was considered to be "payment settlement", which was an incorrect interpretation of the meaning of "payment settlement". Some courts even interpreted the provision of payment settlement assistance as the provision of bank cards and other financial accounts for the purpose of payment settlement for others. The Opinion clarifies that the sale and rental of credit cards, bank accounts, and non-bank payment accounts are not “payment settlement” assistance, but other assistance behaviors. This means that behaviors after the Opinion is issued cannot be considered as “payment settlement” assistance. If the behaviors before the Opinion are issued have not yet been judged, the Opinion can be interpreted in favor of the actor. At the same time, the "Opinion" gives more specific judgment standards at the level of determining subjective "knowingly" when providing bank cards, Alipay and other financial accounts to others for virtual currency crimes, breaking the standard of "presumed" knowledge, namely, Article 8 of the "Opinion": Determining whether the perpetrator specified in Article 287-2 of the Criminal Law knows that others are using information networks to commit crimes should be based on the number of times, number of pieces, and number of credit cards, bank accounts, non-bank payment accounts, Internet account passwords with payment and settlement functions, network payment interfaces, online banking digital certificates, or other people's mobile phone cards, data cards, Internet of Things cards, etc. specified in Article 7 above, and combined with subjective and objective factors such as the perpetrator's cognitive ability, past experience, transaction objects, relationship with the perpetrator who commits information network crimes, the time and method of providing technical support or assistance, the profit situation, and the perpetrator's confession, a comprehensive determination should be made. This means that when the investigating agency determines subjective "knowingly", it must give priority to comprehensive determination. Unless there are circumstances that can be presumed to be knowingly in the second paragraph, the presumption standard cannot be applied first. That is, the purchase, sale, and rental of unit bank settlement accounts, unit payment accounts of non-bank payment institutions, or the use of the convenience of performing duties or providing services by practitioners in the telecommunications, banking, and online payment industries to illegally open and sell or rent other people's mobile phone cards, credit cards, bank accounts, non-bank payment accounts, etc., can be determined as "other circumstances sufficient to determine that the perpetrator knew" as stipulated in Article 11, Item (7) of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Illegal Use of Information Networks and Assisting Information Network Criminal Activities". However, this does not apply if there is evidence to the contrary. 3 Dealers including virtual currency trading platforms, acceptors, digital wallet platforms, etc. can conduct virtual currency transactions, but if they are clearly informed that the transaction partner is suspected of telecommunications network fraud and continue to trade, they will face criminal penalties The tenth article of the Opinion stipulates that if a distributor of prepaid cards, virtual currencies, mobile phone recharge cards, game point cards, game equipment, etc. on an e-commerce platform is clearly informed during the investigation of a case by the public security organ that the counterparty is suspected of telecommunications network fraud, but continues to trade with the counterparty, it is in accordance with Article 287-2 of the Criminal Law and will be held criminally liable for the crime of aiding information network criminal activities. If other crimes are also constituted, they will be convicted and punished in accordance with the provisions of the heavier punishment. This regulation, for the first time, included virtual currency transactions in the scope of crackdown, becoming the first judicial document to regulate virtual currency transactions. However, this regulation is also the first judicial document to grant domestic virtual currency dealers the status of dealers. According to this regulation, two points can be explained. If interpreted literally, any entity that can sell virtual currency and earn a spread can be called a dealer, which includes virtual currency trading platforms, acceptors, digital wallet platforms and other entities; secondly, virtual currency transactions can be carried out. From this point of interpretation, it just fits the positioning that virtual currency is a virtual commodity that individuals can trade freely. Based on this, dealers including virtual currency trading platforms, acceptors, digital wallet platforms, etc. will not be suspected of criminal offenses when engaging in virtual currency transactions, unless they are clearly informed during the investigation of the case by the public security organs that their trading partners are suspected of committing telecommunications network fraud crimes and they still conduct transactions. However, this lawyer believes that the scope of virtual currency dealers still needs to be clarified by the introduction of relevant regulations, otherwise there will be differences in recognition. 4 Acceptors and arbitrageurs will soon face criminal penalties The eleventh point of the Opinion stipulates that if a person knowingly transfers, cashes out, or withdraws money in any of the following ways, and it complies with the provisions of the first paragraph of Article 312 of the Criminal Law, he shall be held criminally liable for the crime of concealing and hiding the proceeds of crime and the proceeds of crime. However, there is evidence that he did not know. (ii) Converting property or cashing out through e-commerce platform prepaid cards, virtual currencies, mobile phone recharge cards, game point cards, game equipment, etc. at a price that is obviously different from the market price; (iii) Assisting in the conversion or transfer of property and charging a "handling fee" that is obviously higher than the market price. If the above-mentioned acts are committed in collusion beforehand, they shall be treated as joint criminals; if they constitute other crimes at the same time, they shall be convicted and punished in accordance with the provisions of the heavier punishment. Unless otherwise provided by laws and judicial interpretations. We all know that virtual currency transactions involve "moving bricks" to earn the difference, and selling coins with acceptors, which is reflected in coin-to-coin transactions and legal currency transactions. In this process, the price advantage of virtual currency is obtained by using the prices on different platforms and in different time periods, and the price difference is used to make a profit by "buying low and selling high". If this price difference is determined to be a transaction at a price that is obviously different from the market price, it is very likely to be determined as a crime of concealing and concealing criminal proceeds and profits from criminal proceeds. If the acceptor discusses with the telecommunications network fraudsters in advance and helps convert their funds into virtual currency and then transfers them to the designated wallet address, there is not only the risk of concealing and hiding the proceeds of crime and the profit from the proceeds of crime, but more seriously, it will constitute an accomplice to the crime of fraud. In summary, this lawyer believes that the Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Telecommunications Network Fraud (II) is the first judicial document to stipulate the crackdown on virtual currency transactions. It distinguishes that the sale and rental of credit cards, bank accounts and non-bank payment accounts are not "payment settlement" assistance, innovatively proposes the concept of virtual currency dealers, and potentially indicates the non-criminal punishment of virtual currency transactions. However, the Opinion also includes entities related to virtual currency transactions in the scope of crackdown, and further clarifies the criminal risks of assisting information network criminal activities, concealing and concealing criminal proceeds, profits from criminal proceeds, and fraud. The issuance of the Opinion is still a specific measure to continue the country's crackdown on virtual currency transactions and prevent criminal risks of financial crimes. I believe that in the future, relevant documents regarding virtual currency transactions will be gradually promoted. We also look forward to the relevant documents further clarifying the crackdown on entities involved in virtual currency transactions, and providing a bottom line reference standard for entities involved in virtual currency transactions to carry out compliance construction. |
