In the face of a possible upcoming regulatory storm, some virtual currency practitioners on the edge of the criminal law began to play the idea of moving their business overseas, thinking that as long as the business is far away from mainland China and the main personnel have a foreign green card, they can definitely avoid the supervision of Chinese law, and even think that even if they are suspected of a crime, Chinese criminal law is only “too long to reach “.
Indeed, blockchain disputes and crimes have challenged both China’s traditional civil jurisdiction and criminal jurisdiction due to their hidden, sudden and cross-regional nature. However, this does not mean that practitioners can rest easy by moving their business overseas, especially if the relevant business is suspected of crimes.
Four Jurisdictional Principles
Jurisdiction is a symbol of a country’s sovereignty, and it is designed from the outset to be as broad and aggressive as possible. Our criminal law provides for four principles of territorial jurisdiction, personal jurisdiction, protective jurisdiction and universal jurisdiction in Articles 6 to 9.
Territorial jurisdiction examines the “place of crime”, as long as the crime is in China, China’s public security judicial organs can have jurisdiction.
Personal jurisdiction examines the identity of the suspect, as long as the suspect is a Chinese citizen, even if the crime is committed extraterritorially should be subject to jurisdiction.
Protection jurisdiction examines the impact of extraterritorial crimes on China’s legal interests, the suspect in extraterritorial crimes against China or our citizens, should be sentenced to more than three years of imprisonment, and also in the place of crime constitutes a crime, China’s criminal law can also be jurisdiction.
Universal jurisdiction is to join hands with other countries to combat some international crimes with consensus, that is, for the crimes stipulated in the international treaties concluded or participated in by China, even if the crime process itself and the Chinese eight pole, China’s public security judicial organs can still have jurisdiction.
Territorial Jurisdiction: The Inescapable Curse
So, if an institution conducts business in a place where any virtual currency business is legal and the beneficial owner himself holds a foreign identity, does that necessarily mean that it can be outside the jurisdiction of Chinese criminal law? This is not necessarily the case. If the business in question touches China’s criminal law, then by virtue of the expanded interpretation of “place of commission”, China’s criminal law can also regulate it based on territorial jurisdiction.
What is the “place of commission”? According to Article 6 of the Criminal Law and Article 2(1) of the Interpretation of the Criminal Procedure Law, the place of crime includes the place of the criminal act and the place of the criminal result.
In particular, it is important to note that blockchain and virtual currency related businesses are often conducted through computer networks. Article 2(2) of the Interpretation of the Criminal Procedure Law expands the concept of “place of crime” to include the location of the server used for the network service used to commit the crime, the location of the network service provider, the location of the infringed information network system and its administrator. In the process of the crime, the defendant and the victim used the location of the information network system, as well as the location of the victim when the victim was attacked and the place where the victim’s property was damaged. It can be seen that even if the main body of the practitioner and the business is transferred to a foreign country, as long as its market subject has Chinese people and the property of Chinese people suffers damage, then China can be “the location of the information network system used by the victim”, “the location of the victim at the time of the victim’s infringement “The public security judicial organs of China can still have jurisdiction over the criminal acts of the practitioners.
To give a similar example, if a foreigner opens an offline casino in a country where gambling is legal, then even if a citizen of China goes over to play, our criminal law cannot take jurisdiction by virtue of the principle of territorial jurisdiction (not the place where the crime was committed) or the principle of protective jurisdiction (legal in the locality). However, if he opened an online casino, and the audience is Chinese citizens, then by virtue of the tentacles of the Internet, the relevant place in China can also become the “place of crime”, China’s criminal law can be directly based on the principle of territorial jurisdiction to regulate. Of course, the specific how to bring them to justice, but also to consider the specific circumstances of international criminal judicial assistance, whether they can really be convicted and punished, but also to consider whether the suspect knows that the audience has Chinese citizens and other circumstances, this article will not be developed.
In fact, including blockchain business crimes, for crimes related to the use of computer networks, the “connection points” of China’s criminal jurisdiction are not too few, but “too many”, especially in cases involving illegal fund-raising involving the masses, there are often a large area of This is especially true for cases involving illegal fund raising, where there is often a large area of “where the victim was victimized”, “where the victim used the information network system” or “where the victim’s property was lost”, which in practice is prone to either competing In practice, it is easy to either compete for jurisdiction, the public security judicial organs around want to manage, or pass the buck to each other do not want to manage the jurisdictional contradictions.
In this regard, we believe that we should give full play to the role of the “designated jurisdiction” system, in case of contradictory jurisdiction should be reported in a timely manner, the higher public security judicial organs to communicate to determine jurisdiction. Or establish the priority jurisdictional status of certain locations, such as “actual harm”, in order to improve judicial efficiency and solve the jurisdictional conflicts of blockchain crime cases in a fair and just manner.
Posted by:CoinYuppie，Reprinted with attribution to:https://coinyuppie.com/overseas-currency-related-crimes-can-chinese-law-control-them/
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