Recently, many old friends in the currency circle have asked Sister Sa’s team for help, hoping that we can help them get back the virtual currency that was “lost” for various reasons in the early days. Such a type of case, when I first heard it, I felt that I had a good chance of winning, but I only felt that it was done. When I asked for details, I couldn’t help hesitating. I could only patiently explain to my old friends why this couldn’t be done . And such a type of cases, mostly because of the same reason, the statute of limitations . Once the statute of limitations in civil law has passed, the other party will be able to obtain the statute of limitations defense right. Although the court cannot take the initiative to explain to the parties, the parties who are represented by lawyers often do not miss the statute of limitations defense . Mediation agreement, otherwise most of them can only be left to nothing.
Then, the road of civil law does not work, can we protect rights through criminal prosecution? After all, if the other party uses fraudulent means to defraud the virtual currency held by the party or refuse to return the virtual currency, etc., as long as the amount is sufficient, there are similar crimes in the criminal law to be punished. Fortunately , although these cases have passed the statute of limitations, they are still within the statute of limitations, and they can still seek relief from public power in the criminal law field . And this kind of statute of limitations in the field of criminal law that the parties have to abide by and cannot be realized once they miss their reasonable demands, is called the statute of limitations system. This system is stipulated in Articles 87-89 of my country’s Criminal Law. Today’s article by Sister Sa’s team will briefly introduce the statute of limitations in criminal law – the statute of limitations for prosecution , and discuss some simple issues.
1. Definition of statute of limitations
The so-called statute of limitations system refers to the system in which the judicial organs will no longer prosecute if the criminal has not been prosecuted after the time stipulated by law after committing the crime . In other words, after the perpetrator commits a crime, if the victim fails to report the case within the time limit for prosecution and seek help from the judicial organ, the judicial organ will not prosecute the crime again, and the victim therefore loses the right to obtain relief through public power. . Therefore, for victims of criminal cases, especially for victims of property-based crimes in the currency circle such as theft, fraud, etc., reporting the case to the judicial authority in a timely manner within the time limit for prosecution is a necessary condition to protect their legitimate rights and interests .
According to my country’s “Criminal Law”, my country’s statute of limitations system is mainly composed of three parts.
First, the duration of the limitation period for prosecution and its calculation , that is, the length of the limitation period for prosecution stipulated by the law and the method for calculating this period. The specific time limit for prosecution is stipulated in Article 87 of the “Criminal Law”, that is, “the crime will not be prosecuted after the following time limits: (1) if the statutory maximum penalty is less than five years of fixed-term imprisonment, after five years; (2) the statutory maximum penalty is If the statutory maximum sentence is fixed-term imprisonment of not less than five years but less than 10 years, 10 years shall pass; (3) If the statutory maximum penalty is fixed-term imprisonment of not less than 10 years, 15 years shall pass; (4) If the statutory maximum penalty is life imprisonment or the death penalty, 20 years have passed. If it is deemed necessary to prosecute after 20 years, it must be reported to the Supreme People’s Procuratorate for approval.” The calculation method of the time limit is stipulated in the first paragraph of Article 89 of the “Criminal Law”, that is, “the time limit for prosecution is calculated from the date of the crime; If the criminal act is in a continuous or continuous state, it shall be counted from the day when the criminal act ends.”
Second, the extension of the time limit for prosecution . This system is stipulated in Article 88 of the “Criminal Law”, that is, “A person who evades investigation or trial after a people’s procuratorate, public security organ, or state security organ has filed a case for investigation or accepts a case in a people’s court shall not be subject to the limitation of the time limit for prosecution. If a complaint is filed within the time limit, and the people’s court, the people’s procuratorate, and the public security organ should file a case but do not file a case, the time limit for prosecution is not limited.”
The third is the interruption of the prosecution period . This is stipulated in the second paragraph of Article 89 of the “Criminal Law”: “If another crime is committed within the time limit for prosecution, the time limit for prosecution of the previous crime shall be calculated from the date of the subsequent crime.”
The provisions of the above three parts are relatively simple in themselves, but in practice, many problems are actually caused. This article will explain the starting point of the simplest statute of limitations for prosecution and the interruption of the statute of limitations for prosecution.
2. Determination of the date of the crime
When a crime occurs, it is relatively simple to determine the duration of the statute of limitations according to the final result and relevant legal provisions. The starting point of the statute of limitations is the date of the crime , so what is the date of the crime? There is not much controversy about the answer to this question itself. The so-called crime date is the date when the crime itself was established, that is to say, the day when the perpetrator’s behavior conforms to the crime constitutes the date of the crime. In this way, the question seems to have been answered, that is, for crimes such as arson that do not require actual harm to occur, the day when the act is carried out is the day of the crime, while for those crimes that must require actual harm to occur The day of the crime is the day of the result.
However , such interpretation logic may have some problems in the application of some specific crimes . Taking fraudulent virtual currency as an example, the crime of fraud is considered to be a typical consequential offense, and the prosecution period for consequential offenses should be calculated from the date of the consequential occurrence. The problem is that if the perpetrator commits fraud but does not result in the transfer of virtual currency, then the perpetrator’s behavior certainly constitutes an attempted fraud crime, but considering the period of prosecution, since the result has not occurred, how to calculate the attempted fraud crime? What is the time limit for prosecution? In other words, the period of prosecution for attempted fraud is not specified in this article and therefore is not limited? This understanding is clearly inappropriate.
In fact, this is a misreading of the day the crime was founded . Some scholars have pointed out that there is a common wrong way of understanding the understanding of the aforementioned crime date, that is, the day when the crime is committed is the date of the crime when the act is committed, and the date when the result is committed is the day when the harmful result occurs. day of crime. This identification method is not inappropriate for negligent crimes and partial intentional crimes, but in the case of typical intentional crimes such as intentional homicide, this understanding is actually biased from the understanding of the date of the crime mentioned earlier. This is because for the vast majority of intentional crimes, there are completed, attempted and prepared crimes, and although the criminal law will deal with completed crimes, it is also possible to deal with attempted crimes and preparations. Therefore, in the case of an intentional attempted crime, there is a problem with the understanding that the date of the so-called consequential crime is the date of the consequential occurrence.
The reason for such a mistake is that there are deviations in the understanding of the so-called conforming crime in our country’s criminal law theory , and there are misunderstandings in the so-called consequential crime . The so-called consequential crime refers to the crime in which the criminal act must cause the harmful result predetermined by the constituent elements of the crime, but in the absence of such a result, there are actually two ways to deal with it, one is not to treat it as a crime, such as Negligent crime, while the other is an attempt to convict that crime. The requirement of the property damage result of the crime of fraud belongs to the latter . Therefore, in this case, it is of course problematic to think mechanically that the so-called day of the crime is the day when the result of the crime occurs.
In fact, the crux of the matter still lies in the understanding that the so-called act conforms to the day when the crime constitutes the crime. For most of the crimes in the Criminal Law, it stipulates the completed state of the crime (a few crimes do not have an attempted or preparatory state), so when the behavior meets the elements of the composition (including the elements of the result of the crime), it is of course the so-called the day of the crime. However, this is a complete constitutive element. The establishment of some crimes does not require that the behavior is completely sufficient to constitute the constitutive elements, but is based on the combination of the provisions of the General Provisions of the Criminal Law on completed attempts and preparations. This is the case with the attempted crime form and the crime preparation form of punishment. At this time, even if there is no criminal result stipulated in the sub-rules, the act itself has established a crime, so the date of the sufficient amendment of the constituent elements should be regarded as the date of the crime.
Therefore, the so-called crime date is the date when the act conforms to the constitution of the crime, which should refer to the date when the act conforms to the constituent elements (including the amended constituent elements) and the crime is established . Then the date of the prescribed elements of the fulfillment is the date of the crime, and in the case where the criminal law also provides for the preparation of punishment or the attempt, the day when the act complies with the elements of the amendment applicable to the preparation or the attempt of the crime is the date of the crime. day. Of course, it should be noted that, in the latter case, once the fulfillment condition occurs, the fulfillment date should be regarded as the crime date, and the crime date determined at the time of the attempt should no longer be regarded as the crime date. This understanding enables a more reasonable determination of the date of the crime.
3. Interruption of the statute of limitations
The interruption of the prosecution period is a system in which the perpetrator commits a new crime within the prosecution period, so the prosecution period for the old crime is recalculated from the moment of the new crime.
In the case of several crimes committed before and after, there seems to be no doubt about the interpretation according to the law, that is, within the time limit for prosecution of the former crime, if the latter crime is committed, the time limit for prosecution of the former crime shall be counted from the date of the establishment of the latter crime. But if there are three crimes before and after, and the latter crime is within the prosecution period for the former crime, does that mean that the prosecution period for the first two crimes should be recalculated from the date of the establishment of the latter crime, that is, the third crime? In this regard, some scholars believe that this provision should be understood as follows: “When the offender is convicted of the second crime, the statute of limitations for the first crime and the second crime shall be calculated from the time when the second crime is convicted; The statute of limitations for the first crime is still calculated from the date when the second crime is convicted, and the statute of limitations for the second and third crimes is calculated from the date when the third crime is convicted. The limitation period for prosecution can only be recalculated from the date of the establishment of the ‘later offense’, but it can no longer be recalculated from the date of the establishment of the third or later crime that does not belong to the ‘postofficial offense’.”
The reason for this is because if the previous understanding is adopted, that is, as long as the subsequent offense occurs, all the previous offenses are recalculated to recalculate the prosecution period, then it is likely to lead to a situation where a misdemeanor will be prosecuted after 20 years, which is considered to be a It violates the original intention of the limitation system . Because the statute of limitations system itself is to make the crime no longer prosecuted after a certain period of time.
But in fact, this kind of cognition is unreasonable. Since a new crime is committed within the prosecution period of the previous crime, it means that the perpetrator’s risk of recidivism still exists. In order to punish him, it is natural to recalculate the prosecution period for the previous crime. Therefore, whenever a new crime occurs, the prosecution period should be recalculated together with all previous crimes that are still within the prosecution period . Therefore, the understanding of the above-mentioned scholars should not be adopted, and the provisions on the interruption of the prosecution period should still be applied according to the previous method.
Fourth, write at the end
Every provision in the Criminal Law has its meaning, and even the seemingly uncommon and infrequent statute of limitations can actually play an extremely important role in practice . Therefore, when one’s property, such as virtual currency, NFT digital collection, etc., is damaged by the infringement of others, rights protection is important, but active and timely protection of rights and the initiative to seek remedies in civil law and criminal law are more critical . Only in this way can we better protect our legitimate rights and interests.
Posted by:CoinYuppie，Reprinted with attribution to:https://coinyuppie.com/blockchain-sequelae-is-your-rights-protection-period-still-valid/
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