current position:Home>A court in Beijing ruled on the theft of virtual currency: data or property? The legal attribute of virtual currency is still controversial

A court in Beijing ruled on the theft of virtual currency: data or property? The legal attribute of virtual currency is still controversial

2022-05-15 00:27:30Sina Finance blockchain

  5 month 5 Japan , The trial information network of Beijing court disclosed a judgment document of criminal litigation cases , Case involved “ value ”5000 Ten thousand yuan of virtual currency was stolen , Including TEDA coins 、 Ether money 、 The currency .

   Final , Chaoyang District People's Court of Beijing ( Hereinafter referred to as “ Chaoyang Court ”) Denied the defense opinion of the defender that constitutes the crime of damaging the computer information system , Supported the Chaoyang District People's Procuratorate of Beijing ( Hereinafter referred to as “ Chaoyang procuratorate ”) Accusation , The defendant was convicted of theft , Sentenced to fixed-term imprisonment 12 year , Fine 20 Ten thousand yuan , To deprive of political rights 2 year .

   Here's the thing to watch , In judicial practice , Local courts have different opinions on the determination of bitcoin theft . Partner of Beijing Dacheng Law Firm 、 Xiao SA, director of the Law Research Association of the Bank of China 2021 In an interview with the media in, he said , There are a large number of bitcoin theft cases , Judging from the criminal judgment , There are two main views on the criminal characterization of bitcoin theft : One is to recognize bitcoin as property , In line with the constitutive requirements of larceny in criminal law , Constitute a larceny ; The other is that bitcoin is a kind of data , Stealing bitcoin constitutes the crime of illegally obtaining computer information system . The crime of destroying computer information system proposed by the defender in this case is similar to the crime of illegally obtaining computer information system .

   The Court pointed out that ,《 Notice on prevention of bitcoin risk 》 I mentioned “, In terms of nature , Bitcoin is a specific virtual commodity ”, therefore , Virtual currency has property attribute , For property interests , The crime of theft belongs to the protection of the law . Vision China

   According to the judgment document ,2019 At the beginning of year , Ling Yuesheng, who is in his 30s ( alias ) A temporary residence in Yuncheng district, Yunfu City, Guangdong Province is unemployed , In primary school culture, he wanted to use his mobile phone “ Plucking wool ”, Then search Baidu for the teaching of how to crack the network request package and invade the computer information system .

   after , Ling Yuesheng found a way to tamper with the data in the network request packet , He also told his fellow countryman Ling Shishan about this method ( alias ), Lingshishan is also a primary school culture . From then on , They have been trying to invade a digital asset trading platform system serviced and maintained by an information technology company in Beijing .

  “ I use the mouse to grab the data on the page , Point to point , Finally found the loophole .” Ling Shishan confessed that .2020 year 10 month , Ling Shishan found the transfer vulnerability of the system when using Ling Yuesheng's account , Capture data on the platform through a packet capture software , Then manually add... At the beginning of the captured data “-” The number is sent to the platform , You can see the increase of virtual currency in your wallet account on the platform .

   According to the report materials of an information technology company in Beijing 、 The system background log shows ,2019 year 10 month 16 Japan , Ling Yuesheng registered an account on the above platform and tried to attack the system it maintained , Last until 2020 year 10 month 15 Early morning 4 The point of successful intrusion into the system . After registration, Lingshishan real name account successfully invaded the system , Registered again 17 Two real name accounts log in through their devices in turn to attack system vulnerabilities , Withdrawal after success .

   only 2020 year 10 month 16 Early morning 2 Point to 5 spot 15 In time , The two men stole TEDA coins in total 62 m , Ether money 12687.9956 individual 、 The currency 149.99627927 individual . Ling Yuesheng put the private key of the stolen virtual currency in a golden apple mobile phone , Stored in the safe where his cousin temporarily lives , In addition, the two realized about 200 Ten thousand yuan RMB , Used to buy BMW and other expenses .

   According to the testimony of Tian, the legal representative of the above information technology company ,2020 year 10 month 16 Day in the morning 9 spot , The company's platform maintenance personnel found that the platform they served had abnormally large cash withdrawals , At that time, the price of TEDA coins was about 6.7 RMB , Ethereum sells for about each 2500 RMB , Bitcoin sells for about... Each 7.9 RMB 10,000 yuan .“ Our company is subject to XX Global XX Ltd. Entrust a digital asset trading platform to carry out system R & D, maintenance and technical consulting services , According to the technical service contract signed between our company and the company , This system intrusion event , Our company needs to pay RMB to the other company according to the agreement 5025.97 Ten thousand yuan .”

   After discovering the vulnerability , The information technology company overhauled the vulnerability , After that, Tian reported the case to the public security organ , Through the company Log , Locked Ling Yuesheng and Ling Shishan . Tian also said , To fix system vulnerabilities , The company also hired a third party to repair the system safely , cost 20 Ten thousand yuan .

  2020 year 10 month 21 Japan , The public security organ arrested Ling Yuesheng and Ling Shishan , The next day in criminal detention , On 2020 year 12 month 8 Arrested on April , He is now detained in the detention center of Chaoyang District, Beijing .

  2021 year 5 month 6 Japan , Chaoyang procuratorate brings a public prosecution to Chaoyang Court , It is believed that the defendant Ling Yuesheng 、 Ling Shishan's behavior violated the provisions of article 364 of the criminal law , They should be investigated for criminal responsibility for theft , Ask the court to sentence .

   however , The defendant Ling Yuesheng and his defender disagree with the charges . The defense argued that , The virtual currency involved in the case does not belong to property , The trading platform involved is an overseas illegal platform , Should not be protected by law , And the amount of the alleged crime lacks factual and legal basis , Therefore, the defendant's behavior in this case does not constitute larceny , Instead, it should be convicted and punished for the crime of destroying computer information system .

   For the above defense opinion , Chaoyang Court said , According to the issued by the central bank and other ministries 《 Notice on prevention of bitcoin risk 》《 On preventing the financing risk of token issuance 》 And so on , The case involves bitcoin 、 TEDA money 、 Ethereum and other virtual currencies do not have monetary attributes such as legal compensation and compulsion , Not a currency .

  “ However, the above provisions do not deny the property attribute of virtual currency as a virtual commodity , Our laws 、 The administrative regulations also do not prohibit the holding and transfer of bitcoin .” Chaoyang Court said so in its opinion .

   The court also noted that ,《 Notice on prevention of bitcoin risk 》 I mentioned ,“ In terms of nature , Bitcoin is a specific virtual commodity ”, therefore , Virtual currency has property attribute , For property interests , The crime of theft belongs to the protection of the law .

   Chaoyang Court held that , Under the control of the purpose of illegal possession , It has carried out the means of invading and attacking the computer information system and the result of selling and making profits after stealing the virtual currency , Meet the constitutive requirements of larceny , Should be convicted and punished for larceny , The crime of destroying computer information system only involves the evaluation of its means and behavior , There is no complete evaluation of the criminal act , Therefore, the defense opinions of the defender are not adopted .

   secondly , For what the defender mentioned “ The amount of alleged crime lacks factual and legal basis ” This opinion , The court said , The defendant stole the overall value of virtual currency and lacked authority 、 A neutral evaluation agency , Therefore, this case is not based on 5000 More than 10000 yuan of platform transaction value to determine the amount of crime of the two people .

   The court further stated that , But the defendant stole the virtual currency and sold it for profit 200 More than 10000 yuan is objective and realistic , Based on facts and law , This case takes the amount of stolen goods sold as the basis for the conviction and sentencing of the defendant .

   Liu Yang, a lawyer at Beijing Deheng Law Firm, said , The court finally recognized the realized amount of the defendant as the proceeds of theft , It is more appropriate to measure the sentence in this way , But for some money theft cases that have not been realized , In other words, after making a profit, it goes through repeated trading , When the initial amount cannot be determined , It is suggested that criminal responsibility should be investigated for the crime of illegally obtaining computer information system .

   Besides , Chaoyang Court held that , Whether the platform involved belongs to the illegal platform , And whether the virtual currency on the platform belongs to the property protected by law , Problems that fall into two categories . And the opinion that the platform involved in the case is illegal and should be shut down , The defense failed to provide sufficient evidence to prove it .“ But even illegally occupied property , Before returning to its proper state through legal procedures , The possession is also the legal interest protected by larceny . Therefore, the legal attribute of the platform involved , It does not affect the stereotype of the defendant's behavior .” The verdict states that .

   Final , The court ruled that the defendants Ling Yuesheng and Ling Shishan committed theft , Sentenced to fixed-term imprisonment 12 year , Fine 20 Ten thousand yuan , To deprive of political rights 2 year , Continue to recover illegal income .

   Combined with a recent bitcoin related civil award of Beijing Arbitration Commission and recent currency related jurisprudence, it can be found that , The courts in Beijing generally support “ Virtual currencies such as bitcoin belong to virtual property , Protected by law ” The idea of this trial , But the referee rules have also changed .

  “ About the theft of virtual digital currency , The referee rules in Beijing are different in different time periods , It can be roughly divided into three stages .” Yang Xiang Liu 21 Century Business Herald reporter said .

   The first stage is 2017 year 9 month 4 Before the day , Related cases are mostly convicted and punished for larceny . For example, Beijing Dongcheng District People's court (2015) Dongxingchu Zi No 1252 Judgment No , The court said , The defendant's purpose is to possess illegally , Stealing other people's property secretly , Larger amount , Its behavior infringes on citizens' property rights , Has constituted larceny , It should be punished according to law .

   The second stage is 2017 year 9 month 4 solstice 2021 During the year , Jointly issued by seven ministries and commissions 《 Notice on preventing the financing risk of token issuance 》 Start .

   Liu Yang mentioned , The above announcement makes it clear that “ Not for tokens or ‘ Virtual currency ’ Provide pricing 、 Information intermediary and other services ”, Larceny is a property crime , It is usually necessary to identify the price of stolen items , The price appraisal department is limited by the impact of the announcement , Unable to issue price appraisal report , The handling of money theft cases has become a major problem for the judicial organs all over the country , However, this kind of behavior is an act of violating the legal interests of criminal law, which must be cracked down on , Therefore, it starts from the data attribute of virtual currency , Identified as “ Crime of illegally obtaining computer information system ” or “ Crime of destroying computer information system ”.

  2018 year 7 month 6 Japan , The Haidian District People's Procuratorate of Beijing Municipality has filed a criminal lawsuit against Beijing Haijian science and technology 〔2018〕70 Indictment No. accused the defendant of illegally obtaining data from the computer information system , The defendant worked as an operation and maintenance development engineer of bitcontinental , Transferred the company 100 Put a bitcoin into your e-wallet . Finally, the Haidian District People's Court of Beijing supported the charges and was convicted .

   Liu Yang said , The case has opened up ideas for the national judicial organs on how to crack down on currency theft cases after the above announcement , It is also the first money theft case in China to be investigated for criminal responsibility for the crime of illegally obtaining computer information system data .

   The third stage is 2021 Years later, , The determination of the two charges has “ supporters ”, There are also differences in trials across the country .2021 Since then , With the price of bitcoin rising all the way , More people join the army of speculation , There is an increasing incidence of violations in this field .

  “ under these circumstances , I personally think , The staff of the judiciary have also quietly changed , Like before , I think digital money is worthless , But now , The specific undertakers of the case know that virtual digital currency is real gold and silver .” Liu Yang mentioned to reporters , Some judicial personnel will think that it is extremely light to investigate the criminal responsibility of the defendant for the crime of illegally obtaining computer information system data , Crime, responsibility and punishment are incompatible .

   meanwhile , The judiciary has also strengthened the research on the criminal crime of virtual digital currency .

  2021 year 5 month , Li Hui, a first-class procurator of the second procuratorial department of Haidian District People's Procuratorate of Beijing, is in 《 Chinese prosecutors 》 The magazine wrote that ,“ On the premise that the amount involved is particularly huge , Identifying computer related crimes will lead to extremely light sentencing , Whether it has the significance of punishment also needs to be further studied . As for the criminal law theory involving the crime of infringing on property , It also needs to be further adapted and expanded under the background of virtual currency .”

   Opponents also have . stay 2021 year 7 At the second criminal practice Forum on preventing and resolving financial risks held in January , Yu Haisong, director of the criminal division of the Research Office of the Supreme People's court, proposed , There is no doubt that virtual property has property attributes , But is it property , The preposition method is not clear . In the case of unclear legal basis , Having the property attribute does not necessarily mean to be the property in criminal law , It is not necessary to apply property crime to related behaviors .

  “ On the legal attribute of virtual property , There is a lot of controversy in the field of civil law . Criminal law is the guarantee law of other departments , In the case that the preposition method is not clear , It is not necessarily the best choice for criminal law to rush to the front , We should stick to the second nature of criminal law , Try to be modest .” Yu Haisong thinks so .

  “ The root cause of this result is , The legal status of bitcoin in China is not clear , Regulatory policy is ambiguous .” Zhong Haiwei, lawyer of ShengDian law firm, is in 2021 year 6 An article published in May pointed out that , take “ Theft ” The behavior of bitcoin is characterized as the crime of illegally obtaining the data of computer information system, which is more like an expedient measure to avoid discussing the property attribute of bitcoin , And directly “ Theft ” The practice of characterizing bitcoin behavior as theft , It is inevitable to face questions from the perspective and feasibility of criminal policy , Both approaches are difficult to say .

editor : Guo Jian

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