Joke Collection Website - Bulletin headlines - Crime Risk of Virtual Currency Related Business Activities (Reprinted)
Crime Risk of Virtual Currency Related Business Activities (Reprinted)
I. Definition of the legal status and related business activities of virtual currency in the Notice
As a universal equivalent, money is a medium of transaction and has no value in itself. It is generally believed that money represents wealth, and this direct correspondence is due to the government's credit guarantee. The issuer of virtual currency is not the government of a sovereign country, nor does it have a national credit guarantee, and it does not have the legal status of a wealth carrier.
(1) It is clear that virtual currency does not have the same legal status as legal tender. The main features of virtual currencies such as Bitcoin, Ethereum and TEDA are that they are issued by non-monetary authorities and exist in digital form by using encryption technology and distributed accounts or similar technologies. They have no legal compensation and should not and cannot be circulated in the market as money.
(2) Qualitative analysis of related behaviors. The exchange and transaction between virtual currency and legal tender or virtual currency, providing matching services for virtual currency transactions, token issuance and financing, and virtual currency derivatives transactions are all illegal financial activities, which are strictly prohibited and resolutely banned according to law. If carrying out relevant illegal financial activities constitutes a crime, criminal responsibility shall be investigated according to law.
(3) It is also an illegal financial activity for overseas virtual currency exchanges to provide services to domestic residents through the Internet. Domestic staff of relevant overseas virtual currency exchanges, as well as legal persons, unincorporated organizations and natural persons who know or should know that they are engaged in virtual currency-related businesses and still provide them with services such as marketing promotion, payment and settlement, and technical support, shall be investigated for relevant responsibilities according to law.
(4) Relevant trading activities and relevant civil legal acts are invalid. Suspected of undermining financial order and endangering financial security, the relevant departments shall investigate and deal with it according to law. This includes administrative responsibility and criminal responsibility.
The second is to crack down on virtual currency transactions and related businesses.
The issuance of virtual currency, without government credit guarantee, is easy to become a tool of wealth plunder; The speculation of virtual currency is easy to be manipulated, causing huge losses to investors and triggering systemic financial risks. Because of the anonymity of virtual currency, the original source of funds can be bleached at will through transactions, so as to achieve the purpose of money laundering and encourage related criminal activities.
From the national level, the hot speculation of virtual currency has threatened the country's financial security, people's wealth security and social stability, and will inevitably suffer administrative intervention and criminal blows from the whole chain.
(A) in the original acquisition process, severely crack down on "mining"
In September, 2002 1 1 departments jointly rectified virtual currency mining activities, and the National Development and Reform Commission and other departments jointly issued the Notice on Regulating Virtual Currency Mining Activities. The Notice requires a clear distinction between "mining" and blockchain, big data, cloud computing and other industries. It is necessary to sort out existing projects and new projects under construction from their basic data such as enterprise, scale, computing power and power consumption. It is strictly forbidden to invest in new projects, carry out virtual currency "mining" activities in the name of data centers, and strictly limit the installation and energy consumption of virtual currency "mining" enterprises by telegraph. It is strictly forbidden to provide financial and tax support for the new virtual currency "mining" project. Accelerate the orderly withdrawal of stock projects from the perspectives of power supply, fiscal and taxation support and financial services.
(2) Trading and exchange links are strictly prohibited and banned according to law.
1. Strengthen the registration of market entities and advertising management related to virtual currency. The registered name and business scope shall not contain such words or contents as "virtual currency", "virtual assets", "cryptocurrency" and "cryptoassets". It is strictly forbidden to make, publish or endorse advertisements related to virtual currency.
2. Financial institutions and non-bank payment institutions shall not provide services for virtual currency-related business activities. It is forbidden to carry out legal tender and virtual currency exchange business, exchange business between virtual currencies, and buy and sell virtual currencies as central counterparties.
3. Strengthen Internet information content and access management related to virtual currency. It is not allowed to provide information intermediary and pricing services for virtual currency transactions, token issuance financing and virtual currency derivatives transactions. Other business activities related to virtual currency are suspected of illegal financial activities such as illegal sale of token tickets, unauthorized public issuance of securities, and illegal fund-raising.
(3) The criminal risks involved in virtual currency-related activities.
The public security organs will continue to carry out in-depth "special action against money laundering", "special action against cross-border gambling" and "punch card action", severely crack down on illegal business operations, financial fraud and other criminal activities related to virtual currency, money laundering, gambling and other criminal activities carried out by using virtual currency, and illegal fund-raising and pyramid schemes with virtual currency as the gimmick.
It can be seen that with the hot speculation of virtual currency, financial security risks, social stability risks and social wealth risks are accumulating, and criminal attacks on related behaviors are already on the way, and criminal risks suddenly increase.
3. Virtual currency transactions and related businesses may be suspected of committing crimes.
Related business activities involving virtual currency are easy to involve illegal business operations, financial fraud and other criminal activities. Criminal activities such as money laundering and gambling carried out by using virtual currency and illegal fund-raising and pyramid schemes using virtual currency as a gimmick are the key targets of the judicial organs.
(1) The crime of organizing and leading pyramid schemes attracts people in the name of investing in virtual currency, requiring participants to obtain the qualification to join by paying fees or buying virtual currency, forming a hierarchy in a certain order, and directly or indirectly taking the number of people who have developed as the basis for reward or rebate, so as to induce and coerce participants to continue to develop others' participation.
(2) The crime of fund-raising fraud, in activities such as virtual currency business, fictitious mining, or building a platform, after absorbing the funds of an unspecified person, squandering them so that the funds cannot be returned, or absconding with the money, or withdrawing or transferring funds, or hiding property to avoid returning the funds. If the amount reaches 654.38 million yuan, it constitutes a crime.
(3) illegally absorbing public deposits, on the grounds of investing in "mining", or building a virtual currency trading platform. Publicize to the unspecified public and promise to get a fixed income within a certain period of time. If the absorption amount reaches RMB 200,000, it will constitute a crime if it is suspected of illegally absorbing public deposits or absorbing public deposits in disguised form.
(4) The crime of fraud refers to directly "cutting leeks" on the grounds of promoting an investment package of a virtual currency, or using an illegally established virtual currency investment trading platform to control trading activities, fabricate market conditions, and modify trading data and prices.
5) The crime of illegal business operation is usually manifested as. Set up a virtual currency trading board, or act as an agent for foreign virtual currency trading boards, organize investors to buy up and down in the form of futures trading, and collect handling fees.
(6) The crime of money laundering refers to the act of changing the form by buying and selling virtual currency, knowing that it is the proceeds of drug crime, organized crime of underworld nature, terrorist crime, smuggling crime, corruption and bribery crime, crime of disrupting financial management order and financial fraud crime.
At present, the cross-border exchange of virtual currency is a new means of money laundering. Although China's regulatory authorities explicitly prohibit token issuance financing and exchange activities, due to the differences in regulatory policies adopted by different countries and regions on virtual currency such as Bitcoin, virtual currency can be freely exchanged with legal tender through overseas virtual currency service providers and exchanges, and virtual currency has been used as a new means of cross-border money laundering.
(7) The crime of opening a casino mainly focuses on exchanging RMB and virtual currency for casinos. According to the theory of * * * crime in criminal law, it is suspected of opening a casino. Under normal circumstances, the actor still applies to become a virtual game currency exchange agent for online gamblers, knowing that a game platform is an online gambling platform, and provides services for buying and selling virtual currency and fund settlement.
Although online virtual currency can not be completely equivalent to traditional property such as money, under certain circumstances, the actor can achieve the criminal purpose of illegally obtaining other people's property through the possession of virtual currency. Therefore, fraud against virtual currency may also endanger the property safety of citizens, legal persons and other organizations, which is quite harmful to society and should also be treated as a crime.
Is virtual currency protected by law? Is it a crime to steal or defraud virtual currency?
First, virtual currency, such as bitcoin, or some games and online currencies, such as QB and a game gold coin, are legal property of individuals, and are protected as long as they are legally acquired by individuals.
Second, transactions prohibited by the state mean that speculation and transactions in virtual currency are prohibited in China. However, prohibiting transactions does not mean that virtual currency itself is illegal or worthless.
For example: Take Bitcoin as an example. China refuses to recognize any regional block currency and prohibits trading and services, but this does not mean that Bitcoin itself is worthless. In the international trading system, bitcoin is recognized in some areas and has a corresponding value scale.
When others steal or defraud Bitcoin, the state will still punish them for theft or fraud, and the amount needs to be approved.
At present, China prohibits the trading and pricing of virtual currency, but it does not prohibit the value and possession of virtual currency itself. As long as money is not defined as illegal, it is legal.
In the same way, game currency is also recognized as legal property, but the state prohibits its trading, which does not affect the corresponding legal liability caused by virtual currency infringement.
What is the crime that the virtual currency traded online on the virtual currency trading platform is suspected of pyramid selling?
May involve illegal fund-raising, pyramid schemes and other related criminal offences.
(1) At present, there are no laws and regulations to regulate trading platforms, but trading platforms should also fulfill the obligation of auditing. For example, when trading various online virtual currencies, it is necessary to check whether the currency is an online virtual currency based on blockchain technology.
(2) If the trading platform knows that the currency traded online is suspected of pyramid schemes, but in order to collect commissions, it also provides trading services for the currency to promote its development. Once the currency is recognized as pyramid selling, the trading platform may have to bear certain legal responsibilities.
(3) At the same time, a large number of customer funds are deposited in the accounts of virtual currency trading institutions, and various online virtual currency trading institutions are not qualified to absorb public funds, which makes trading institutions face the potential risk of illegal fund-raising.
The 20 17 edition of the MLM Identification Guide on the Internet (hereinafter referred to as the Guide) lists several differences between virtual currency and MLM currency:
(1) From the distribution mode, the distribution of virtual currency does not depend on a specific monetary institution, but is decentralized according to a specific algorithm; MLM coins are mainly issued by institutions, making profits by pulling people's heads;
(2) From the transaction mode, virtual currency is a sporadic transaction spontaneously formed by the market. After the scale is formed, the third party will gradually establish an exchange to complete the transaction, while the MLM coins will be issued by the institution itself, and a platform will be built for trading;
(3) In terms of implementation, virtual currency itself is an open source program, while the open source of MLM currency is to completely copy other people's open source codes, without using open source codes to build programs. Its essence is as controllable as Q coins.
First, the alleged fraud of the virtual currency platform usually appears in two links, one is the currency issuance link, and the other is the transaction link.
First, at the issuing end, it is necessary to examine whether the virtual currency issued by the platform has real value attributes.
Generally speaking, virtual currency is a digital asset, and the key to identify whether it has value authenticity lies in whether it has decentralized liquidity, that is, whether the existence of virtual currency and its liquidity depend on the centralized platform itself.
If it is a virtual currency developed based on mainstream blockchain technologies such as Ethereum and Wave Field, it is decentralized. This virtual currency can be traded with all mainstream virtual currencies after being online. If the so-called virtual currency issued by the platform is not developed based on blockchain technology, the virtual currency itself may be just a line of program code. Without the platform, the virtual currency cannot flow, and this virtual currency can only be called "platform currency" or "air currency", which will also die after the platform server is shut down.
In practice, if the virtual currency issued by the platform is not supported by any real value or service, nor is it developed based on blockchain technology, it may be identified as illegal possession of other people's property by deception because it provides goods or services with no real value, and then it is identified as fraud.
Second, at the transaction end, it is necessary to investigate whether the platform manipulates and controls the price of virtual currency during the transaction.
The transaction of virtual currency should be a complete market behavior, and the rise and fall of its price is completely determined by the market. If people intervene or even completely control the price of virtual currency, the market pricing mechanism will completely lose its meaning. In practice, platform manipulation and price control should also distinguish different situations.
In the first case, the platform side modifies the background parameters by technicians and sets the upper and lower limits of the transaction price, that is, it controls the rise and fall of the currency price by delineating the price trading interval.
In the second case, the platform side directly modifies the price of virtual currency by modifying the background data through technicians, and completely controls the rise and fall of the price of virtual currency.
The author thinks that there are factors to manipulate and control the currency price in both cases, but they should be distinguished qualitatively. In the first case, the platform does not directly control the price of virtual currency, but sets the price of virtual currency by imitating the price fluctuation mechanism of the stock exchange market. Subjectively, the platform requires technicians to do this in order to maintain the stability of the currency price and prevent the virtual currency price from skyrocketing and plunging due to irrational speculation, which will lead to the collapse of the platform. In this case, the behavior of the platform to control the rise and fall of the currency price is not to illegally occupy other people's property, but to maintain the stability of the platform operation and should not be considered as fraud.
The second situation is different. The platform directly controls the price of virtual currency, which leads to the complete failure of the influence of market game behavior on the price rise and fall, and the virtual currency is completely priced by the platform. If the platform abuses this technical means, it may lead to the platform's operation mode of "pulling the market first, then smashing the market", resulting in the illusion that investors will lose money in a large area due to the "melting" of the market. In fact, the actual controller of the platform illegally occupied this part of the "loss". In this case, in order to illegally occupy other people's property, the platform requires technicians to manipulate the price, which may be considered as fraud.
Generally speaking, if the platform controller sends money to operate the platform for the continuous operation of the platform, then most of the funds obtained should be used for the continuous operation of the platform, and a small part should be used for dividends according to the established rules. Therefore, "commercial" use should be considered as not having "illegal possession purpose".
This view is reflected in the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising: "Illegal absorption or disguised absorption of public deposits is mainly used for normal production and business activities, and if the absorbed funds can be repaid in time, they can be exempted from criminal punishment; If the circumstances are significantly minor, it will not be treated as a crime. " Therefore, "mainly used for normal production and business activities" is usually not considered as "illegal possession purpose".
If the funds are directly owned by the platform controller, they are not put into the platform operation, or only a small amount of funds are used for operation, and most of them are used for profligacy, luxury consumption or illegal transfer to realize the possession of funds, it can be considered as "illegal possession purpose".
It is worth noting that the review of the use and destination of funds should follow the principle of proportionality. If most of them are used for official business and a small amount of luxury goods are consumed, they should not be generally identified as "illegal possession purposes".
To sum up, technicians are involved in many aspects of the virtual currency platform, from issuing coins to trading to income distribution, and their objective behavior and subjective intention will have an impact on whether the case constitutes fraud. Defenders should comprehensively judge whether the case as a whole constitutes a crime of fraud from multiple angles of technical service and combined with the evidence materials of the case. If it does not constitute a crime of fraud, it shall be examined whether the case as a whole constitutes a crime of organizing and leading pyramid schemes or illegal business operations, and whether technicians constitute a crime of helping information network criminal activities.
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