Xiao Sa: It is not appropriate to evaluate the operation of the currency circle with the crime of illegal operation

Last night, a piece of news touched the hearts of virtual currency related personnel. A well-known financial media broke out: “A number of people familiar with the supervision told reporters that after the central bank’s “Notice” was issued, the public, prosecutors, and legal authorities were violating virtual currency exchanges and mining. Research on relevant situations such as mines, explore the specific path of conviction and sentencing, and it is expected that relevant judicial interpretations will be issued in due course.” As soon as the news came out, many readers asked privately about the truth and falsehoods of the “informed persons” in the report. , A few comments, not as a reference for everyone’s next action.

1. The use of the term “supervision” is debatable. The issuance, operation and trading of virtual currencies in my country are illegal (see the 2017 9.4 announcement for details). There is no gov. agency responsible for the supervision, management, and guidance of the digital token industry’s healthy development (compared to P2P, there were management methods and regulatory systems for online lending that year.). The 9.24 notice is indeed a joint document issued by ten ministries and commissions, but its purpose is to prevent and deal with the risks of virtual currency trading speculation, and the foothold is to protect the order of economic management and personal property safety.

2. The main body of the two high-level judicial interpretations does not include the public security organs. Only the Supreme Court and the Supreme People’s Procuratorate have the authority to issue judicial interpretations in this field. In the report, the “publicity, procuratorate, and judicial organs” stated that they would issue judicial interpretations in a timely manner, which is subject to problems. And the judicial interpretation is not a basket, it is a document that can guide the lower-level organs after careful consideration. In recent years, the academic circles have been criticizing certain acts of “legislative reality” in the name of judicial interpretation, and calling for judicial interpretation to abide by the principle of legally prescribed crimes and punishments.

3. China’s criminal law follows the “principle of legally prescribed crimes and punishments” . Only the National People’s Congress can formulate and amend the criminal law (readers can consult the issuing authority of the criminal law amendment), and neither the court system nor the procuratorial system has the right to create “whether an act should be punished by the criminal law” That is, penalties cannot be created, let alone expanded penal circles arbitrarily . It is possible for the two highs to interpret the criminal law, but they must comply with three regulations: (1) the possible meaning of the terms of the criminal law, that is, the range expressed by the text, must not be exceeded; (2) the prediction possibility of the citizens must not be damaged; (3) the crime and punishment must be strictly observed Statutory principles.

4. Unless there are amendments to the pre-law, such as the “Securities Law” and the “Commercial Bank Law”, the 924 notice alone fails to meet the requirements of the pre-law’s “legal level”. The joint document issued by multiple ministries and commissions is also at the departmental level. It can reflect the importance of various organs, but it has not changed the level of its documents, and it is impossible to determine that a certain behavior constitutes an illegal business in the sense of Article 225 of the Criminal Law.

5. The September 24 notice listed several crimes and forms of crimes severely cracked down by the Ministry of Public Security in accordance with the law: illegal business crimes, financial fraud crimes, money laundering crimes, gambling crimes, illegal fund-raising, and organizing and leading pyramid schemes. From the experience and observations of Sister Sa’s case handling, the crime of organizing and leading pyramid schemes has a high incidence in the past few years, and the confiscated virtual currency has become a hot potato. Coin cases are basically covered by Article 266 of the Criminal Law; the crimes of illegally absorbing public deposits and fund-raising fraud are fewer, but there are. Money laundering crimes will be the top priority this year and next, and it is expected that the number of criminal cases will increase in the future. Sister Sa believes that selling high-value virtual mining machines and configuring virtual currency for domestic high-net-worth individuals are likely to be suspected of money laundering crimes. Please work Personnel should not commit crimes against the wind. As for the crime of illegal business operations, my attitude is very clear. Taking existing laws as the object of investigation, the laws and administrative regulations do not characterize virtual currency operations and transactions as illegal. At present, only departmental regulations and lower-level regulatory documents identify the above behaviors. Illegal.

The “illegal” required by Article 225 of the Criminal Law’s crime of illegal business operations is a violation of laws and administrative regulations or State Council orders and other national-level laws and regulations, rather than departmental rules. Therefore, the current conclusion is that virtual currency business transactions should not be based on illegal business operations. Conviction and punishment. However, if the judicial interpretation “explains” the operation of virtual currency and frequent transactions into a certain law, as in almost all P2P criminal cases, the indictment will mention that online lending platforms violate the Commercial Banking Law.. …. Although some new things in society have a certain degree of social harm or infringe on certain legal interests, they cannot be explained by analogy in order to achieve the purpose of social defense, so that the originally criticized “pocket crime” is true. The open mouth of the people, which contradicts the protection of people’s behavior expectations and violates the basic principles of the criminal law. The criminal law still needs to be modest and restrained. Currently, bans, expulsions, qualitative violations and joint law enforcement and social policies are adopted. Through comprehensive governance, the risks related to virtual currencies can be gradually and effectively curbed.

Write at the end

In related articles and second-spread articles, we found that the reporter friend extracted the opinions of Sister Sa in this company. We really don’t know the hot spots and unique angles that the reporter friends want to highlight, and we can’t help but be surprised when we see the article. We are not “informed persons close to supervision”. If anyone really participates in the internal solicitation of relevant legislation and judicial interpretations, they will basically sign a strict confidentiality agreement.

We have no intention of standing in line, and we are also worried that the law popularization article will be taken out of context. Please don’t use the words or part of the article in the official account of the team as the final analysis conclusion (just like seeing a doctor, you can’t check the symptoms in popular science articles, and prescribe your own prescriptions). I kindly ask friends and readers. , If you choose the opinions in Sister Sa’s article or make decisions such as surrender based on the opinions of this official account, please be sure to check with us and inform us of the overall situation.

“Criminal law is the Magna Carta of good people, and also the Magna Carta of criminals.” Law enforcement must abide by the “principle of statutory crimes and punishments.” The relaxation and relaxation of the principle of statutory crimes and punishments will inevitably lead to the expansion of judicial power, thereby endangering people’s freedom. “(Quoted from Zhang Mingkai’s “The Basic Position of Criminal Law” 2016) Therefore, to “apply criminal law” to an industry or its practitioners, it must be like walking on thin ice, not expanding the penal circle through non-legislative means, and giving people stable expectations, using wisdom and technology. Properly resolve risks. At the same time, this article is also written to scholars and experts. If you are really participating in the research and judgment of relevant interpretations, please speak up. It is not appropriate to evaluate virtual currency business behaviors as illegal business crimes and stick to the bottom line of statutory crimes and punishments. As above.

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