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Discussion on "The Criminal Law of Illegally Stealing Bitcoins"

2022-11-23 17:19:52Golden Finance

近日,《中国检察官》The official account published an article written by the prosecutor of the Third Branch of the Beijing Procuratorate titled《The Criminal Law of Illegally Stealing Bitcoins》(以下简称“《定性》一文”)的文章,文章认为,Determining the nature of illegal theft of bitcoins,The question of whether Bitcoin can become property in the sense of criminal law must first be resolved,That is, whether the dominant rights and interests attached to Bitcoin can become the legal interests protected by the criminal law.Should the theft of virtual digital currency be regulated as the crime of theft or as the crime of illegally obtaining computer information system data,In recent years, it has been a hot topic of discussion in judicial practice circles,The author has discussed in other articles,A Review of the Judgments of Cases of Stealing Coins in my country,呈现了盗窃——Non-obtained——盗窃的转变过程,At present, most of the criminal responsibility of the thief is investigated for the crime of theft.,For example, the case of stealing money that was judged by the Chaoyang District People's Court mentioned in the article,And the case of stealing coins judged by the People's Court of Guangxin District, Shangrao City not long ago,等等.

From Beijing area,About cases involving virtual digital currency,Haidian and Chaoyang handle relatively more,The Beijing Sanfen Procuratorate is the superior unit of the Chaoyang Procuratorate,The referee's point of view on the latest Chaoyang coin theft case《定性》The text echoes,As a lawyer who focuses on the criminal defense of virtual digital currency,More should be done《定性》Read the article carefully,with a view to seeking an opinion in favor of the defense.After reading the full text,有如下思考,Or confused,Seek advice from senior colleagues.

一、比特币是否具有财产属性?

2013年12月3The People's Bank of China and other five ministries and commissions《Notice on Preventing Bitcoin Financial Risks》(以下简称“2013年《通知》”)规定“从性质上看,比特币应当是一种特定的虚拟商品.”This is the first time that Bitcoin has been positively affirmed in the form of departmental regulations.“虚拟商品”属性.而《定性》一文认为,2021年9Ten departments including the People's Bank of China《关于进一步防范和处置虚拟货币交易炒作风险的通知》(以下简称“2021年《通知》”)Completely denied the currency property attributes.文章认为,2021年《通知》Stricter controls on virtual currencies such as Bitcoin,Define virtual currency-related business activities as illegal financial activities,一律严格禁止,That is to say, it is clear that the business activities of Bitcoin on the trading platform are all illegal activities.延续了2017年《公告》精神,It is determined that the bitcoin controlled by the trading platform cannot be regarded as property in the sense of criminal law.

笔者注意到,files of any level,never denied bitcoin“虚拟商品”的属性,Even the so-called most strictly regulated2021年《通知》.相反,2021年5月18日,中国互联网金融协会、中国银行业协会、中国支付清算协会联合发布的《关于防范虚拟货币交易炒作风险的公告》中,再次明确“虚拟货币是一种特定的虚拟商品”.这里的“虚拟”二字,Does not refer to illusory value or false legal nature,only to distinguish it from traditional tangible property.《民法典》第一百二十七条规定,法律对数据、网络虚拟财产的保护有规定的,依照其规定.which contains data,Also contains the network virtual property,那么“虚拟商品”Can it be considered to be“网络虚拟财产”?笔者认为,From the cognitive perspective to the general public,应当是可以的.Common people don't understand so many legal concepts,Just focus on whether it is a“东西”,是“东西”do the words belong to me,以及我的“东西”What if someone took it away?.

《定性》一文认为,随着2021年《通知》的出台,Is Bitcoin controlled by individuals recognized by the state?,It needs to be interpreted and judged according to the spirit of national regulatory policies.文章提到,“Purely personal control is not used for any transaction的比特币,At this time, Bitcoin does not exist in transactions recognized by the legal order,means that it has no exchange value in itself.It is debatable whether it has use value for the ruler,Or even if Bitcoin can achieve a certain spirit of dominating people、Emotionally fulfilled,However, its use value cannot reach the level of criminal law protection or there is no need for criminal law protection.,Unable to become property in the sense of criminal law,cannot have property attributes.”对此,The author holds a negative attitude.2021年《通知》出台后,There are also many friends asking whether personal currency holdings are compliant,笔者认为,for current policy,“Currency hoarding is not speculative”must be fully compliant,should also be protected by law.If it is believed that Bitcoin does not exist in transactions recognized by the legal order,no transaction value,So is it prohibited by law for players to conduct compliant transactions offshore??Whether it has transaction value on legal trading platforms in other countries?The value of Bitcoin is not limited to hoarding and trading,If you use Bitcoin as a consumable to record on the blockchain,Including the consumption of Bitcoin as a service fee in the process of using the Bitcoin network,Does it reflect the use value of Bitcoin?笔者认为,Bitcoin usage scenarios are not limited to“交易”一种行为模式,There are not only trading scenes in China,在以“recognized by law”When Considering Bitcoin Property Attributes for Elements,应当具有International perspective and technical perspective.

《定性》Yiwen also thinks,基于2017年9Seven departments including the People's Bank of China《关于防范代币发行融资风险的公告》(以下简称“2017年《公告》”),Bitcoin dominated by trading platforms does not have property attributes,But it is held between individuals、The property attribute of exchanging bitcoins has not been negated(截至2021年《通知》前).笔者认为,关于这个观点,There are many inconsistencies in practice,In other words, it is difficult to operate and grasp in practice,You should know,Currency holding or trading requires carrier,可以是钱包、交易所,or through the private key、Hardware and other physical means of transfer,Since it is considered that the individual holds、Exchanged bitcoins have property attributes,So whether the bitcoins that individuals exist in the trading platform have property attributes??Whether the bitcoin traded between two natural persons through the medium of exchange has the attribute of property?Even the trading platform,How to characterize the bitcoin held by its affiliated company or actual controller stored on the trading platform?Even the currency of the trading platform itself,The coins stored in the hardware cold wallet have been separated from the trading platform itself,又该如何理解?

二、According to the policy about the stolen money case time difference between qualitative is reasonable?

《定性》一文认为,Under the premise of clarifying the criminal law attributes of Bitcoin,Illegally Stealing Bitcoins According to Behavioral Means、The governing body is different,can be identified in three cases,The main basis is whether Bitcoin has property attributes during the policy period.“If the behavior occurs in2017年9月之后,At this time, the bitcoin on the trading platform should not be recognized as property in the sense of criminal law,Cannot be regulated by property crime.”笔者认为,如前所述,The currency in the trading platform is not owned by the platform,Its actual currency holder is still an individual,Since it is believed that the bitcoins held by individuals here have property attributes,The perpetrator stole bitcoins that were personally deposited in the trading platform,How to determine it?《定性》The article seems to only consider the issue of where the coins are,Does not consider who the currency belongs to,If according to the point of view in the text,should still be classified as theft.Including the specific situation mentioned above by the author,The currency of the trading platform is stored in the hardware cold wallet,Cold wallets are usually managed by individuals,According to the point of view in the text,The currency of the trading platform does not have property attributes,But in practice, based on the situation of individual holding,It seems that it should be classified as theft,Such a characterization is obviously contrary to the meaning of the text,In practice, however, such situations are common.

《定性》一文认为,“Against the use of computer information technology to illegally steal personal possessions of Bitcoin,If the behavior occurs in2021年9月之后,cannot be regulated as a crime against property,Should be convicted of illegally stealing computer information system data.”The author believes that there are still inherent defects in such a qualitative,众所周知,There are three standards of incrimination,损失、条数、获利.Consideration of Behavioral Habits Based on the Field of Virtual Digital Currency,If the offender to make use of computer information technology to steal the COINS,but do not perform cash operations(In essence, this kind of behavior is very common in the currency circle),Or just do currency trading,Do not trade in fiat currency,How should we evaluate at this time??获利?没有.条数?不够.损失?众所周知,The non-convicted alleged loss was limited to“Including the economic loss directly caused to the user by the crime of endangering the computer information system,以及用户为恢复数据、功能而支出的必要费用”,According to the value of the currency?Contrary to the context,and generally cannot be considered to be“direct economic loss”,as an individual usually cannot prove“恢复数据、功能而支出的必要费用”,Loss is also cannot be determined,Then hold the thieves accountable without being convicted,How to incriminate?在此多说一句,Substantial current non-conviction cases,所谓的“损失”They are all victims“做出来的”,Like discovering it was stolen,Find a technology company to do software maintenance and upgrades, etc.,Although it cannot be said to be fake,But it does not conform to the spiritual core of criminal law.

三、so qualitative,Will it cause new problems?

笔者对于《定性》Dissenting opinion:“Stealing other people's bitcoin private key to transfer bitcoin.如果在2021年9月之后,crime against property,At the same time, it cannot be evaluated by other criminal acts such as illegally obtaining computer information system data due to means and behaviors.,cannot be identified as a crime.”You should know,The basic principles of criminal law include the principle of protection of legal interests,《定性》One article is also approved,No regulatory documents clearly2021年9Situation of personal holdings of Bitcoin after 1 month,However, if only this is the reason for not making a criminal evaluation of the act of stealing the private key,In a sense, it means that the legal interests of the currency holders are essentially abandoned,Bitcoin is not a thing,不能随身携带,Banks cannot exist,Private key is the only certificate of virtual digital currency,If the behavior of stealing private keys is not evaluated,Will it lead the perpetrators to commit crimes in this way more recklessly??My concerns are not unfounded,As virtual digital currency investment is not legally protected,There have emerged many“The currency circle is old”,It's just taking advantage of loopholes in policies and laws.,嚣张的“欠钱不还”,Also because the judiciary refuses to file a case on the grounds that virtual digital currency is not protected by law,Recently, offline currency fraud in the currency circle、Cases of coin robbery continue to rise.

如果按照《定性》一文的观点,对于2021年9Happened months later,How to evaluate the actor's behavior of blackmailing Bitcoin?How to evaluate the behavior of robbing Bitcoin?How to evaluate fraudulent bitcoin behavior?If bitcoin is the victim2017年9legally held,Bitcoins that were not exchanged for damages by the perpetrator,Evaluation is also unable to make sense of criminal law?Clearly contrary to the simple cognition of the general public.The purpose of criminal law is to punish crime,保护人民.正如Zhang Peng, President of the First Criminal Division of the Beijing No. 1 Intermediate People's Court曾谈到,“Data said can't evaluation using robbery crime、The act of obtaining virtual property from the victim by means of fraud.In the social public for network virtual property and real property transactions between transformation has on the basis of a certain cognitive,Doing this explanation does not violate the expected possibility of the public and the principle of a legally prescribed punishment for a crime.”

四、关于比特币,到底谁说的对?

From a defense lawyer's point of view,《定性》The main idea of ​​the article actually supports the defense's point of view.In the defense of money theft cases,for qualitative questions,Defenders will basically work in the direction of non-acquisition,For example, the author once represented a case of stealing coins in a certain place in Zhejiang,In the end, the defendant was prosecuted for criminal responsibility without conviction,并适用缓刑.同样的,Qualitative disputes for currency-related cases,They can support their own views in the article perspective,Fulfilling pleas of misdemeanor and pleas of innocence.

《定性》The main idea of ​​an article,Consistent with the view of the Supreme People's Court.Hu Yunteng, former vice-ministerial full-time member of the Supreme People's Courtmentioned in a seminar:The mainstream view of the Supreme People's Court is that virtual property cannot be equal to property,Rather, it should be treated as data.under the principle of legality,虚拟财产(加密资产)Not yet in criminal law,Its legal attributes are diverse,cannot be simply equated with property、data or currency,bundle of rights.最高人民法院研究室刑事处处长喻海松mentioned in a seminar:在前置法律依据不明的情况下,具有财产属性并不必然意味成为刑法上的财物,对相关行为不一定要适用财产犯罪.侵犯商业秘密罪的适用就是例证.同理,可以认为非法获取计算机信息系统数据罪、破坏计算机信息系统罪的对象“数据”同样可以具有财产属性.在确实无法适用非法获取计算机信息系统数据罪等罪名的情况下,比如没有使用技术手段而是直接敲诈勒索、抢劫虚拟货币的,也可以考虑通过手段行为予以评价;在极个别法益侵害程度高、社会危害大,手段行为确实难以罚当其罪的情况下,作为例外,可以考虑将行为对象解释为财产性利益,尝试适用财产犯罪定罪处罚.当然,这样一个处理路径实属当下的“权宜之计”,系统妥当解决相关问题只能寄希望于民法等前置法的不断完善.

实务中,There are not a few who support the protection of virtual digital currency as a property interest.例如Lao Dongyan, a professor at the Law School of Tsinghua University, believes that:The Constitutive Elements of Property Crimes Should Be Understood and Reconstructed with the Times,The concept of property should also develop with the times,In order to meet the normative protection needs of the Internet age.The tendency to understand property as a bundle of rights is worthy of recognition,Also in line with historical trends.In view of the real property of incorporeal objects,For some virtual properties that can be protected by property crimes,property interest.Member of the Party Leadership Group of Beijing No.1 Intermediate People's Court、Vice President Tan Jinsong believes that:As for whether virtual currency is recognized as virtual property or property, it needs to be clarified by law,Based on the basic idea that the absence of express prohibition is legal,As long as it has the character of property and the law does not prohibit personal ownership,should be treated as property and protected by law,Legal recognition should not be an obstacle.Wu Juping, deputy director of the Third Procuratorate Department of the Second Branch of the Shanghai Municipal Procuratorate, believes that:The scope of combating property crimes has gradually expanded.根据司法解释,Property Not Protected by Criminal Law,Even drugs and other contraband,From the perspective of combating specific behaviors,can also be the object of crimes against property.Objects of Interpretation of Virtual Currencies as Financial Misapproaches Face Significantly Less Barriers.

五、结语

There has never been a thing quite like Bitcoin,Let the law be so tangled.笔者认为,The currency or the COINS,Just because of the different time period of the incident,property attributes,Did not reflect the predictability of the law,It will make the public feel at a loss,This creates new legal issues.Opinions or questions raised by the author's article,It is also hoped that legislators can consider the characteristics of the industry and the technical aspects of the blockchain.The law should respond to practice in a timely manner,In view of the virtual digital currency,Relevant departments should improve the legislation in a timely manner,Or through a more flexible method such as the meeting minutes of the two high schools and the first one,Provide legal support for currency-related cases,Let front-line judicial practitioners no longer be entangled.笔者关注到,Huang Hui, Deputy Director-General of the Administration and Inspection Department of the State Administration of Foreign Exchange11月22日在2022金融街论坛年会上表示,Jointly promote the improvement of legislation in related fields such as virtual currency,Strengthen management of virtual currency trading,Include it in illegal payment settlement according to different types and functions,Illegal securities or illegal tokens and other regulatory scope.This should be seen as a positive sign.诚如Professor Che Hao所言,Regarding whether virtual currency is property,no essentialist answer,Relevant foreign regulations have limited reference value,Judicial practice cannot be generalized based on individual experience.In this regard, we should return to the basic principles of criminal law,Combining the situation of our at different stages in the judgement and legal order change,The answer to this question is entirely likely to change with the development of the times and policy adjustments.

作者:刘扬

北京德恒律师事务所合伙人、Deputy Secretary-General of Criminal Committee、执业律师.北京大学软件工程硕士.Fifteen years of legal work,主要从事网络、区块链和数字科技与金融交织的细分领域刑事业务,网络安全应急技术国家工程实验室数据安全咨询专家(国家级重点实验室),北京计算机学会网络空间安全与法务专委会副秘书长(杨芙清院士任学会会长),北京大学软件与微电子学院校友会理事.联系方式:13581751329.

Members of Liu Yang's lawyer team of Beijing Deheng Law Firm generally have many years of judicial practice background,Keep an eye on the pancrypto领域,Good at representing currency-related fraud with certain grounds、非法集资、Organizational leadership MLM、非法利用信息网络、Assistance in criminal defense of information cybercriminal activity cases,Currency-related civil and commercial arbitration,元宇宙、nft、web3.0Industry compliance and corporate governance in emerging fields.

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