The Dilemma and Solution of “Illegal Awareness” in Digital Currency Crime

Currently, digital currency has become an important part of China’s payment system. At the same time, due to the decentralization, anonymity, and openness of digital currency, it also has a certain impact on the security and stability of national financial credit funds.

Due to the relatively short development time of digital currency, a legal and regulatory system for digital currency has not yet been formed, and the object of cognition of illegality is the legal standard, which leads to the lack of completeness in judging the illegality of the perpetrator in digital currency crimes.

Currently, digital currency has become an important part of China’s payment system. At the same time, due to the decentralization, anonymity, and openness of digital currency, it also has a certain impact on the security and stability of national financial credit funds. Moreover, more and more cases show that digital currency can be Used to hide, transfer and “launder” the proceeds of crime and its proceeds, it has become a possible means of accompanying crime. In the judicial supervision system, although the state has formulated and promulgated some relevant legal regulations and policies to strengthen the supervision of the digital currency market and crack down on related illegal crimes, due to the imperfect legal system of digital currency and the unique characteristics of digital currency Attributes, resulting in many problems in the process of cracking down on digital currency crimes, such as behavior determination, crime selection, and amount determination. Among these issues, the difficulty in identifying illegality and the influence of illegal knowledge on the degree of criminal responsibility of the perpetrator have often become the focus of the tripartite dispute between the prosecution and the defense. Currently, China has launched a digital RMB pilot program and is establishing a digital currency supervision system. In this context, it is necessary to increase in-depth research on the illegality of digital currency crimes in order to achieve effective governance of digital currency crimes.

The recognition dilemma of illegality in digital currency crime

It is difficult to identify objects of illegal knowledge. Due to the relatively short development time of digital currency, a legal and regulatory system for digital currency has not yet been formed, and the object of cognition of illegality is legal norms. This leads to the lack of completeness in judging the illegality of the perpetrator in digital currency crimes. Digital currency crime is the most typical. At present, the regulatory basis for digital currency is mainly related to the relevant financial policies issued by the national ministries and commissions and the administrative regulations with virtual currency as the regulatory object. This kind of complex and unspecific regulatory basis makes the judgment of illegality lack of evaluation objects and then fall into judgment. Dilemma.

The relationship between illegality and social harm is blurred. Social harm is the lowest standard for judging illegality. Only when the perpetrator realizes that his behavior is socially harmful, can he judge the illegality. As far as digital currency crimes are concerned, the main legal interests infringed upon are the state’s financial management order and citizens’ property. However, since there are no explicit provisions in the legal regulations regarding the supervision of digital currency, it is difficult to determine the infringement of legal interests for criminal acts of digital currency. In addition, due to the recoverability of the economic losses caused by criminal acts of digital currency to citizens’ property, at this time, whether citizens’ property rights have been substantially violated may also be in a state of uncertainty.

The rules for misjudgment of illegal knowledge still need to be perfected. The determination of digital currency crime requires that the perpetrator needs to have an understanding of the law that adjusts the relationship between digital currency transactions and the technical engineering involved, but it is not easy to judge the degree of understanding. Whether the policies and replies implemented by financial institutions of different types and levels can have a reasonable and trustworthy effect, and then affect the judgment of the perpetrator’s perception of illegality, still needs to be explored in depth. In addition, the existing regulations on the distribution rules of digital currency rights and obligations are ambiguous, resulting in practitioners not being able to clearly understand the scope and specific content of relevant financial institutions’ review obligations, and then misunderstanding of the illegality of financial institution personnel in digital currency transactions Certain difficulties arise in the judgment of identification standards.

Criteria for the recognition of illegality in digital currency crimes

Based on the characteristics of decentralization and anonymity of digital currency and the constituent elements of the understanding of illegality, the judgment of the knowledge of illegality of digital currency should be judged according to the following order and content.

First of all, digital currency traders should understand relevant laws and regulations. On the one hand, as far as legal digital currency is concerned, it is essentially legal currency in digital form, so it should abide by the current laws and regulations on legal currency. According to relevant regulations, China’s legal digital currency is the digital renminbi. The People’s Bank of China has currently launched a pilot program for the issuance and circulation of digital renminbi, and has given digital renminbi legal status in Article 19 of the “People’s Bank of China Law (Draft for Comment)”. If the draft for comments is passed, China will follow the law. To supervise legal digital currency, traders of legal digital currency should clearly understand the legal system of legal digital currency based on the “People’s Bank of China Law”. On the other hand, as far as private digital currency is concerned, it has obvious decentralization, which makes it different from virtual currency. Private digital currency is not regulated by network operators but by traders themselves. As a result, private digital currency transactions cannot be directly applied to the legal supervision system of virtual currency or virtual property. However, China currently does not have any legal regulations on private digital currencies. Judging the illegal understanding of private currency transactions can only refer to the applicable laws and regulations on virtual currencies and related policies on private digital currencies.

Second, digital currency traders should clearly recognize that related behaviors are socially harmful. When digital currency traders conduct legal digital currency transactions, even if they fail to fully understand the provisions of the People’s Bank of China on legal digital currencies, based on common sense in life, they should know that they cannot privately forge, issue, and raise national legal digital currencies. Such behaviors will endanger the country’s financial order. If there is a similar behavior, it can be determined that the perpetrator can realize that the behavior is socially harmful. At present, according to the “Announcement of the People’s Bank of China on Preventing Token Issuance Financing Risks”, it is known that China prohibits private digital currency transactions in the domestic market, and cannot conduct private currency exchange market registration and RMB exchange. Private digital currency traders open exchanges and exchange RMB privately, which cannot be achieved through the domestic bank payment system. Instead, they need to use overseas accounts for secondary settlement. At this time, the perpetrator should realize that this behavior is prohibited by the state. Once it is implemented It will destroy the national financial supervision order.

Finally, it is inevitable to judge whether digital currency traders have wrong understanding of illegality. Specifically: First, whether digital currency traders have objective conditions to understand the law. This can be mainly determined by the perpetrator’s educational background, professional status and living environment. For those with a bachelor’s degree or above in finance and related majors, their ability to acquire and learn digital currency trading knowledge is higher than that of the general public. Similar people are the staff of financial institutions and government departments involved in financial supervision. Personnel are highly sensitive to changes in digital currency policies and regulations. For the above two types of people, it can be presumed that they have the ability to recognize illegality. Second, whether digital currency traders have worked hard to find out the relevant laws and regulations of digital currency. When digital currency traders are uncertain about digital currency transactions, they should apply to the People’s Bank of China and the government department responsible for financial supervision for an administrative reply on the legality of digital currency transactions. Regarding the effectiveness of consulting commercial banks and experts and obtaining answers, due to its lack of credibility and authority compared with government administrative responses, it cannot be considered that efforts have been made to ascertain digital currency-related laws and regulations. In fact, most city-level regions have branches of the People’s Bank of China and financial regulatory government departments. Therefore, it is possible to verify whether digital currency traders are working hard to find out the laws and regulations related to digital currency. In short, the judgment of the illegal knowledge of digital currency traders should conform to the “three common” judgments of common sense, common sense, and common sense.

Responses to doubts about the identification of illegality in digital currency crimes

First, if digital currency transactions are used as a tool for pyramid schemes and fraud, can the judgment of the perpetrator’s knowledge of illegality apply the aforementioned judgment criteria? The author believes that such behaviors cannot be applied to the judging criteria for the illegality of digital currency crimes, and such behaviors are essentially pseudo-digital currency crimes. The difference between pseudo-digital currency crime and digital currency crime is that pseudo-digital currency does not have the characteristics of decentralization. It is issued by a specific currency institution and can be issued infinitely. The speed and quantity of production are completely controlled by the platform. The nature of pseudo-digital currency crimes is different from that of digital currency crimes, and the criteria for understanding the illegality of digital currencies cannot be applied. In addition, as far as pseudo-digital currency pyramid schemes and fraud crimes are concerned, it is only that the target of the crime has changed. The objective behavior is still pyramid schemes and fraud in nature, and its subjective intention is still the knowledge of the destruction of the property rights of others and the state supervision order. , There is no essential difference from traditional pyramid schemes and frauds, and there is no need for separate explanation and explanation.

Second, can the misunderstanding of illegality in digital currency crime be used as a reason for a minor crime? The author believes that the lack of knowledge of illegality can be a circumstance for discretionary lighter punishment. Digital currency crime is essentially a criminal crime, but due to the decentralized nature of digital currency, the judgment of its illegality has a certain degree of particularity. The relationship between the understanding of the illegality of digital currency crimes and the assumption of criminal responsibility is the same as that of general crimes. The cognition of illegality is a component of intention. If there is an error in the knowledge of illegality, its condemnation at the level of subjective intention will be reduced. Misunderstanding of illegality cannot prevent the establishment of a crime, but it causes the perpetrator to be less condemned at the subjective level. According to the principle of responsibility, the perpetrator’s criminal responsibility can be reduced. Therefore, the misunderstanding of illegality in digital currency crime can be a circumstance of discretionary lighter punishment.

(The authors are the associate professor and postgraduate student of the Southwest University of Political Science and Law School of Law)

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