How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant

The judicial practice departments have different identifications of the legal attributes of different types of virtual currencies and the application of different charges, resulting in large differences in sentencing. How to determine the legal attributes of virtual currency?

On the afternoon of July 9, it was jointly organized by the Fourth Procuratorate of the Shanghai People’s Procuratorate, the Criminal Division of the Shanghai No. 1 Intermediate People’s Court, the Legal Team of the Shanghai Public Security Bureau, and the Financial Supervision and Criminal Governance Research Center of East China University of Political Science and Law. The Second Branch of the People’s Procuratorate, the Third Procuratorate Department of the Second Branch of the People’s Procuratorate and the Banking Insurance Financial Crime Research Center of Shanghai Procuratorate, hosted the “Second Criminal Practice Forum on Preventing and Resolving Financial Risks” in the Second Branch.

The theme of this forum is “Issues concerning the application of laws in crimes related to virtual currencies”. Chen Siqun, Secretary of the Party Leadership Group and Chief Prosecutor of the Second Branch of Shanghai People’s Procuratorate, Hu Chunjian, Director of the Fourth Prosecutors Department of Shanghai People’s Procuratorate, Criminal No. 1 Intermediate People’s Court of Shanghai Yu Jian, President of the Trial Chamber, Tang Haiting, Deputy Leader of the Legal Division of the Economic Investigation Corps of Shanghai Public Security Bureau, and Professor Mao Lingling, Director of the Research Center for Financial Supervision and Criminal Governance of East China University of Political Science and Law, etc. attended the forum. Yu Haisong, Director of the Criminal Division of the Research Office of the Supreme People’s Court, was invited to attend the forum. More than 50 experts and scholars from the city’s public security, procuratorate and academia participated in the forum. The forum activities were hosted by Wang Jianping, Director of the Third Prosecution Department of the Second Branch.

How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant
How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant
How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant

Prosecutor Chen Siqun of the Second Branch pointed out in the opening speech of the forum that financial security is an important part of national security. Preventing systemic financial risks from occurring is an eternal theme of financial work and an important task of financial judicial work; in Shanghai, an international financial center We have the responsibility and obligation to actively respond to the risks implied in various financial innovations, take the lead in studying the regulatory issues and legal application issues involved in various financial derivatives and pseudo-financial products, to unify standards for financial justice, and to provide suggestions for financial supervision. Escorting financial order.

How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant

Hu Chunjian, Director of the Fourth Procuratorial Department of Shanghai People’s Procuratorate, made a thematic report on “The basic situation of the city’s procuratorial organs in handling crimes involving virtual currency and difficulties in the application of law”, proposing the criminal law on the types, legal attributes, value determination and related behaviors of virtual currencies Regulations are provided for discussion by the guests at the meeting.

This forum focused on the two topics of “the legal attributes and supervision path of virtual currency” and “criminal regulation of crimes involving virtual currency”. The legal attributes and supervision path of virtual currency

In recent years, virtual currency issued based on blockchain technology and distributed accounting mode and related token transactions have been active. In judicial practice, there have been cases of theft, robbery, and extortion of virtual currency with a nature of infringement. Illegal fund-raising cases for investment objects and money laundering cases where virtual currency is used to transfer illegal proceeds. The judicial practice departments have different identifications of the legal attributes of different types of virtual currencies. Some identify virtual currencies as data, and some identify them as property. Different crimes are applied, resulting in large differences in sentencing. How to determine the legal attributes of virtual currency?

This topic was presided over by Hu Chunjian, Director of the Fourth Procuratorial Department of Shanghai People’s Procuratorate. Associate Professor Wang Xiaohua of East China University of Political Science and Law, Wu Juping, Deputy Director of the Third Procuratorate Department of the Second Branch of Shanghai People’s Procuratorate, Liu Jiang, Judge of the Civil Tribunal of Shanghai First Intermediate People’s Court, and Wu Ya’an, Judge of the Criminal Tribunal of Shanghai First Intermediate People’s Court, respectively The Generation Mechanism, Transaction Mode and Legal Attributes of Virtual Currency” “The Choice of Criminal Justice Paths from the Perspective of Virtual Currency Regulatory Policy” “The Legal Attributes of Virtual Currency from the Perspective of Civil Trials” “The Nature of Illegal Acquisition of Decentralized Virtual Currency” is Make a keynote speech on the topic.

How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant
How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant
How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant
How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant

Criminal Regulations of Crimes Involving Virtual Currency

At present, crimes involving virtual currency mainly include: crimes involving “virtual currency” as the direct infringement object, investment object, settlement method, and money laundering method, as well as those engaged in transactions involving “virtual currency” and initial coin offering (ICO) behavior. What are the difficulties in the investigation and collection of evidence and the application of the law for the above behaviors, and how should they be resolved?

This topic was presided over by Yu Jian, President of the Criminal Division of the Shanghai First Intermediate People’s Court.

How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant

Tang Haiting, deputy head of the Legal Division of the Economic Investigation Corps of the Shanghai Public Security Bureau, Dong Yang, the fourth division of the Economic Investigation Corps of the Shanghai Public Security Bureau, Li Rui, associate professor of Shanghai University of Finance and Economics, researcher of the Law Institute of Shanghai Academy of Social Sciences, and deputy procurator of Yangpu District People’s Procuratorate Tu Long Section, Professor Li Xiang of East China University of Political Science and Law respectively used “Difficulties in the Investigation and Collection of Evidence and Evidence Determination in Criminal Cases Involving Virtual Currency”, “Difficulties and Countermeasures in the Investigation and Handling of Criminal Cases Involving Blockchain and Virtual Currency”, “Criminal Regulations for Token Issuance and Financing Activities” The functional distinction of data and the criminal regulations of virtual currency crimes” “The Path to Cracking Criminal Laws Involving Virtual Currency Crimes” will be the subject of a special speech.

How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant
How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant
How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant
How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant
How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant

Expert Reviews

How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant

Yu Haisong, Director of the Criminal Division of the Research Office of the Supreme People’s Court, pointed out:

First, virtual property undoubtedly has property attributes, but whether it is a property or not, the pre-method is not yet clear. Article 127 of the Civil Code stipulates: “Where the law has provisions on the protection of data and network virtual property, follow those provisions.” At present, there seems to be no other law. In the case that the pre-legal basis is not clear, having property attributes does not necessarily mean that it becomes a property in the criminal law, and property crimes do not necessarily apply to related acts. The application of the crime of infringement of trade secrets is an example. In the same way, it can be considered that the object “data” of the crime of illegally obtaining computer information system data and the crime of destroying computer information system can also have property attributes.

Second, regarding the legal nature of virtual property, there is a lot of controversy in the civil law community. Criminal law is the guarantee law of other departmental laws. When the pre-law is not yet clear, it is not necessarily the best choice for the criminal law to go to the forefront. We should stick to the secondary nature of the criminal law and try our best to maintain a modest position. As long as the civil law and other pre-laws are the first to clarify the property nature of virtual property, there is no problem in applying property crimes in criminal law.

Third, in the case of insufficient advancement of laws, the crime of illegally obtaining computer information system data and the crime of destroying computer information systems can be sentenced to up to 15 years in prison. In most cases, the crime can be equivalent. Will not indulge in crimes lightly. In the case that the crime of illegally obtaining computer information system data cannot be applied, such as direct extortion and robbery of virtual currency without using technical means, it can also be considered through means to evaluate; in very few cases, the degree of legal interest infringement is high. The social harm is great and it is really difficult to punish the crime by means, as an exception, consider interpreting the behavior object as property interests, and try to apply the conviction and punishment of property crime. Of course, such a processing path is indeed the current “expedient measure”, and the systematic and proper solution of related problems can only be hoped for the continuous improvement of civil law and other pre-laws.

How to regulate virtual currency by criminal means? The expert opinions at this seminar were brilliant

On behalf of PDFR, Mao Lingling, director, doctoral supervisor, and professor of the Financial Regulation and Criminal Governance Research Center of East China University of Political Science and Law pointed out:

First, the topic selection of this forum is at the forefront, with a high standing position and solid content, which reflects the responsibility of Shanghai judicial authorities to escort the construction of an international financial center with judicial wisdom, prevent and resolve financial risks, and ensure financial security. The legal status of false currency is unknown. There has always been a lot of controversy regarding the legal application of property crimes. Virtual currency is property, computer data, currency, a new method of money laundering, a new carrier of fund-raising, or illegally issued securities. Discuss from all angles. Moreover, when a variety of privately issued virtual currencies become new vehicles for speculation and illegal fund-raising activities, financial risks arise; when the number of virtual currencies that can be released without restrictions is out of financial supervision, they may even impact the status of legal tender and affect the international community. Payment and settlement system; in addition, virtual currency poses challenges to preventing money laundering, so the issue of false currency is worthy of discussion.

Second, for crimes targeting virtual property or virtual currency, whether property crimes or computer crimes are handled should be viewed with a dynamic development perspective, taking into account the legal system or the unity of legal order and the particularity of criminal law. The Civil Code stipulates that virtual property is protected by law, but the “property” in criminal property crimes is considered to have both legal and economic attributes from the perspective of criminal law. In the past, it was mainly considered that the economic attributes of virtual property were not clear, and the price was determined. Difficult, generally identified as a computer crime. However, the situation has changed. One is the change in the criminalization pattern of theft in the legislation. The second is that the theft of contraband is punished according to the circumstances in 2013 in the judicial interpretation. The third is that some virtual property or virtual currency has an exchange price in practice. , It is necessary to distinguish the virtual currency of the behavior object. If it is a virtual currency with economic attributes, it shall be dealt with as a property crime, and virtual currency without economic attributes shall be dealt with as a computer crime.

Third, the conduct of telecommunications network fraud, illegal fund-raising, and pyramid schemes in the name of virtual currency is a stakeholder type of crime, and is a crime that is severely cracked down by criminal justice. In terms of evidence specifications, identification of accomplices of acts of assistance, and identification of principal and secondary offenders , To make full use of the existing criminal law resources to form a combined force for execution in preventing virtual currency from becoming a new carrier of fund-raising crime.

Professor Mao Lingling finally emphasized that China has long insisted on strengthening financial supervision. If virtual currency is separated from the financial supervision system, whether it is issuance or circulation transaction, its nature should be determined by its core behavior. Although the current issuance of virtual currency has not yet appeared due to the harmfulness of front-end behavior, it is not treated as an illegal issuance of securities, but if it is used as a redemption tool to engage in payment and settlement, the crime of illegal business or money laundering can be applied. Our country insists on “zero tolerance” for acts that endanger national financial security. The development trend of virtual currencies, especially privately issued virtual currencies with unlimited quantities, presents risks that threaten financial security, and relevant departments should pay attention to them. And further strengthen supervision. Through this discussion, we strive to reach a consensus, promote the unification of applicable laws and standards, and promote the execution of criminal actions to prevent and resolve financial risks. This is the original intention of launching and organizing forum activities.

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