The judicial determination dilemma of the "theft" Bitcoin case.
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2021.06.11
Since May 2021, Bitcoin has encountered successive policy pressures. First, on May 18, 2021, the China Internet Finance Association, the China Banking Association, and the China Payment and Clearing Association issued the ''Announcement on Preventing the Risk of Virtual Tendency Transaction Speculation, ''again Emphasize that virtual currency is a specific virtual commodity, not a real currency, and prohibit financial institutions and payment institutions from conducting virtual currency-related businesses, and remind consumers that virtual currency trading contracts are not protected by law. On May 21, the Financial Stability Committee of the State Council held its 51st meeting to directly name Bitcoin and clearly crack down on Bitcoin mining and trading. After the relevant news was issued, the price of Bitcoin fell sharply.
In recent years, with the rising popularity of Bitcoin, especially the rising price of Bitcoin, cases of "theft" of Bitcoin have occurred from time to time. However, due to the unclear legal positioning of Bitcoin in my country, it has directly led to judicial practice. There are obvious differences in the handling of related "theft" of Bitcoin, and the results of related cases are unconvincing. Judging from the current judicial practice, the attitude of the highest judicial organ towards the theft of virtual property should be clear, that is, it should not be punished as theft, but directly convicted and punished by computer crimes such as illegally obtaining computer information system data. However, judging from the judicial precedents in various places, the local courts still have obvious differences in handling similar cases, It is impossible to reach a relatively unified judgment on the characterization of "stealing" bitcoin.
1. characterized as theft
In practice, some courts directly identify the "theft" of bitcoin as theft, which seems to be in line with the general social concept and can effectively protect the interests of the victims. However, due to the particularity of bitcoin, it is inevitable to face huge disputes in theory and practice to include it in the protection scope of theft, and there are some difficulties in specific operation.
(I) considers Bitcoin as 'public and private' controversial
From a teaching point of view, it does not seem to be a problem to identify Bitcoin as "public and private property. First of all, Article 127 of China's Civil Code stipulates: "if the law has provisions on the protection of data and network virtual property, it shall be in accordance with its provisions." This shows that our country has already stipulated the property attribute of network virtual property in principle at the level of basic law. Bitcoin, as the most popular block chain virtual currency with the highest recognition degree in the world, should be identified as network virtual property without any doubt. Secondly, Bitcoin also fully possesses the basic characteristics of property, namely management possibility, circulation and value Ⅰ, specifically, whoever has the private key of bitcoin has exclusive control over bitcoin, and although the price of bitcoin market fluctuates greatly, it is undeniable that bitcoin needs to pay a lot of economic cost whether it is mined through mining machines or acquired through transfer. Moreover, bitcoin was put forward as a world currency at the beginning of its birth, and in reality it can indeed circulate freely beyond national boundaries. In practice, the cases of defining "theft" of Bitcoin as theft have basically adopted the above-mentioned identification ideas. For example, the Intermediate People's Court of Shantou City, Guangdong Province clearly stated in the Li Nan theft case judged by the court that "theft infringes on public and private property." Ownership ", Bitcoin, as a special Internet commodity, has its cash value and belongs to the legal property of others" II. Another example is the Shanghai Jing'an District People's Court in the trial of the Luo Ye Di theft case directly put forward the case of the TEDA currency as one of the common virtual currencies, with the basic characteristics of property, that is, value, controllability and liquidity III.
The reasons for denying Bitcoin's "public and private property" attribute mainly come from criminal policy. Although Bitcoin is widely recognized, it is undeniable that Bitcoin has basically become a speculative product and the object of speculation in my country. Moreover, the anonymous and irrevocable characteristics of Bitcoin transactions also make Bitcoin a means of many illegal and criminal transactions. In addition, the Bitcoin network needs to continuously record Bitcoin transaction information during the operation process to form new blocks, this process requires a lot of computer computing power (commonly known as "mining"), which consumes a lot of power resources. From this point of view, Bitcoin is obviously more harmful than good for society. Using criminal law to protect Bitcoin as a criminal object of theft may encourage Bitcoin speculation in disguise, thereby harming social interests.
(II) Difficulty in reasonably determining the criminal amount of "theft" of bitcoin
If the act of "stealing" bitcoin is regarded as theft, the first thing to be encountered is the calculation of the amount of theft. At present, there are mainly the following schemes for determining the amount of crime of "stealing" bitcoin:
1. Price identification of the bitcoin involved.
On April 2, 2013, in order to adapt to the development of the social situation, the two highs formulated and issued the Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft (hereinafter referred to as the Interpretation of Theft Cases). Article 4 of the Interpretation of Theft Cases The general method for determining the amount of stolen property is specified: if there is a valid price certificate for the stolen property, it shall be determined based on the valid price certificate; there is no valid price certificate, or if the amount of theft is determined to be obviously unreasonable on the basis of the price certificate, an appraisal agency shall be entrusted to make an appraisal in accordance with the relevant provisions. According to this regulation, it may be necessary to entrust a third-party organization to conduct valuation when handling bitcoin-related cases. For example, in the case of Wu Hongen theft tried by the People's Court of Tiantai County, Zhejiang Province, the Tiantai County Price Determination Bureau was entrusted to issue a ''Price Appraisal Conclusion'' The price of the bitcoin involved was identified IV; in the case of Hu Zhikai theft tried by the People's Court of Dongcheng District, Beijing, the investigation agency directly issued a work statement, explain the price of virtual currencies such as Bitcoin in question.
There may be two problems in the price appraisal of Bitcoin. The first is the appropriateness of the policy. According to the "Announcement on Preventing the Financing Risks of Token Issuance" issued by the People's Bank of China and other ministries in 2017, "Any The so-called token financing trading platform is not allowed to engage in the exchange business between legal tender, tokens, and" virtual currencies, it is not allowed to buy or sell tokens or "virtual currencies" as central counterparties, and it is not allowed to provide pricing, information intermediary and other services for tokens or "virtual currencies". This shows that China does not recognize the price information of any virtual currency trading platform, and relevant institutions basically refer to the price data of virtual currency trading platform when evaluating bitcoin, and the valuation of bitcoins by official authorities is itself a violation of the ban on the exchange of bitcoins with fiat currencies. The second is the feasibility of price identification. Bitcoin is traded 24 hours a day, and its price stability is extremely poor, there is no limit on the range of rise and fall, and it often rises and falls sharply in a very short period of time. Take the recent price of Bitcoin as an example, its price has dropped by more than 50% from the peak around mid-April.
2. The amount of theft is calculated by the amount of the stolen goods.
Calculating the amount of theft by the amount of the stolen goods can avoid the identification of the price of bitcoin, but not all cases of the perpetrator in the "theft" of bitcoin after the act of selling the stolen goods, in the perpetrator did not sell the stolen goods on the basis of the amount of the stolen goods to determine the amount of the stolen goods. In addition, different from ordinary articles, bitcoin has no right defects or depreciation problems in the process of selling stolen goods, and it is completely priced according to the market. Therefore, the actual selling price of bitcoin may also have huge price differences according to the market situation at the time point of selling stolen goods. For example, A takes A as the theft object, B takes B as the theft object and steals the same amount of bitcoin at the same time point, however, A sold the stolen goods one week earlier than B, and the price of bitcoin experienced a sharp drop that week. Therefore, the amount of stolen goods sold by B is only half of that of A. At this time, if the amount of stolen goods is determined according to the amount of stolen goods sold, there will be a significant difference in the punishment of A and B. In fact, there is no difference in the social harmfulness of the behavior of A and B and their subjective intention. Therefore, it is not entirely reasonable to use the amount of stolen goods as the amount of the crime.
3. The cost of the victim's acquisition of bitcoin as the amount of the crime. Ⅵ
This method can also avoid determining the price of bitcoin, but the problem is also obvious. One is that it is difficult to calculate the cost of bitcoin for victims in a large number of cases in practice. Typically, bitcoin for victims in a large number of cases in practice is obtained through "mining". For example, Luo Mou's theft case tried by Shenzhen Longgang District People's Court in 2020 is VII, the bitcoin of the victim unit in this case comes from the proceeds of "mining", the related costs are "mining machines" and electricity, which are difficult to quantify, and the cost of "mining" is rising as the number of bitcoins is forced to the limit of 21 million. In addition, as an investment object, bitcoin will naturally rise and fall in price in the process of being held by the victim. At this time, it may not be appropriate to determine the amount of crime at the price at which the victim bought bitcoin or the cost of obtaining bitcoin in other ways.
4. The Bitcoin analogy is used to sentence the contraband in the light of the circumstances.
Based on the negative evaluation of Bitcoin in policy, it is argued that Bitcoin is actually a contraband, in dealing with "theft" of Bitcoin cases without considering the price, directly according to the seriousness of the punishment. The fourth paragraph of Article 1 of the interpretation of theft cases stipulates that "the theft of drugs and other contraband shall be dealt with in accordance with the crime of theft and shall be sentenced according to the seriousness of the circumstances". Although Bitcoin is currently under policy pressure in my country, it is still quite different from contraband such as drugs and obscene materials. It cannot be generalized, but the "theft" of Bitcoin is indeed proposed from the point of view of sentencing the severity of the circumstances. A brand new solution, at least nominally, does not need to determine the price of Bitcoin. The potential problem of sentencing the "theft" of bitcoin according to the seriousness of the case is that the quantity and value of bitcoin in the case of "theft" of bitcoin are the most important factors to measure the seriousness of the case. Other influencing factors such as criminal means and whether other serious consequences are caused are not typical factors of such cases. The sentencing according to the seriousness of the case is in danger of becoming actual or according to the amount.
2. is characterized as the crime of illegally obtaining computer information system data.
(I) Supreme Judicial Authority Tendency View
The definition of "theft" of Bitcoin as the crime of illegally obtaining computer information system data is the current opinion of the highest judicial authority. The "Interpretation of Theft Cases" responded to many practical issues of theft crimes, but did not respond to the practice at the time. The theft of virtual property such as game equipment and game coins that appeared from time to time responded. Regarding this issue, some judges of the Supreme People's Court who participated in the drafting of the judicial interpretation responded in the article "Understanding and Application of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft" that during the drafting process of the Interpretation of Theft Cases, some opinions did propose to convict and punish the theft of virtual property, but after research, they found that this opinion was inappropriate. For the theft of virtual property, if criminal law regulation is really needed, it can be convicted and punished according to computer crimes such as the crime of illegally obtaining computer information system data. In addition, in 2014, the Research Office of the Supreme People's Court "Research Opinions on How to Characterizes the Profits of Illegal Sale of Game Coins by Stealing Others by Using Computers" once again reiterated the position of conviction and punishment for the crime of stealing virtual property and illegally obtaining computer information system data. X
Although the relevant regulatory authorities in China have made a clear statement on the monetary nature of Bitcoin and denied its monetary nature, it may be difficult to deny its virtual property in terms of actual situation and legal principle. Therefore, the above-mentioned handling opinions of the highest judicial organ on the theft of virtual property should be said to actually reflect its position on the "theft" of Bitcoin, it will provide an important reference for the judiciary to deal with the "theft" of Bitcoin cases.
(II) The practical dilemma faced by the crime of illegally obtaining computer information system data.
The characterization of "theft" of bitcoin as the crime of illegally obtaining computer information system data seems to perfectly circumvent the identification of bitcoin property attributes and the determination of the amount of the crime mentioned in the previous article, but in fact, it is really helpless to deal with the act of "theft" of bitcoin as the crime of illegally obtaining computer information system data, and such an expedient measure will inevitably lead to new and difficult problems.
1. The crime of illegally obtaining computer information system data cannot evaluate all the "theft" of bitcoin, which may cause punishment loopholes.
To truly understand the act of "stealing" Bitcoin, one must first understand the mechanism of Bitcoin transactions. Bitcoin is a virtual encrypted digital currency in the form of P2P. Bitcoin amount is essentially a transfer record. Every bitcoin transaction will be recorded on the block by miners and broadcast on the whole network. The so-called bitcoin amount ownership is established by private key and address, it can be understood here that each bitcoin holder in the bitcoin network has a bank account with an address equivalent to a bank account number. when collecting money, only the address needs to be provided to the transferor. the private key is equivalent to the bank account password. however, unlike ordinary bank accounts, the private key of bitcoin is actually a set of random numbers. the public key is generated by the private key through elliptic curve, and the public key is public, however, the process of generating the public key from the private key is irreversible, that is, the private key cannot be used to reverse the private key after the public key is generated, and the address is generated by the public key. Therefore, in the Bitcoin network, with the private key, the public key and address can be generated, and the bitcoin above the corresponding address can be disposed of, and the transaction needs to be signed with the private key.
According to the above bitcoin transaction principle, it can be seen that the private key is equivalent to the ownership certificate of bitcoin, and whoever has the private key has all the bitcoins on the corresponding address. Therefore, in the bitcoin field, proper management of the private key has become an important issue. As the private key is complex, difficult to remember and extremely important, bitcoin holders generally use "wallets" to manage the private key, so in fact Bitcoin wallets do not directly store Bitcoin, but just a tool to manage Bitcoin private keys, according to the characteristics of Bitcoin wallets, can be divided into the following two categories, cold wallets and hot wallets. Cold wallets refer to wallets that cannot access private keys through the network, such as computers, mobile phones, U disks, hard disks, magnetic tapes, and even paper with private key addresses printed on them. Hot wallets refer to wallets that can access private keys through the Internet. Due to its more convenient use, hot wallets are currently a more popular tool for managing bitcoin private keys. Typical hot wallets are computer client wallets, mobile APP wallet, web wallet, etc. The "theft" of bitcoin in judicial practice is basically caused by the leakage of private keys caused by the invasion of bitcoin wallets. However, as described below, it is precisely because of the complexity of bitcoin wallets that all bitcoin wallets cannot be evaluated as "computer information systems", so some cases do not meet the constitutive requirements of the crime of illegally obtaining computer information system data.
① Invasion of hot wallets
Due to the more common use of hot wallets, most of the cases of "theft" of bitcoin in practice are also done through the invasion of hot wallets. For example, the Haidian District People's Court of Beijing heard the case of Zhong Chongjie's illegal acquisition of computer information system data in 2019. In this case, Zhong Chongjie remotely controlled the computer of the victim unit through software, used ROOT authority to enter the Aliyun server rented by the unit, and inserted a code into the bitcoin wallet to transfer bitcoin XI. Another example is the case of Huang Fangjun's theft heard by the Wuhan Intermediate People's Court of Hubei Province in 2018, the judgment found that Huang Fangjun mastered the account number and password of the victim's bitcoin wallet in the process of helping the victim invest bitcoin online, and then stole the bitcoin in the victim's account using the wallet account number and password he mastered. ⅩⅡ
According to Article 11 of the 2011 "Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Computer Information Systems" (hereinafter referred to as the "Interpretation of Computer Cases"), "computer information systems" refer to functions with automatic data processing. The system includes computers, network equipment, communication equipment, automation control equipment, etc. In the above typical cases, bitcoin wallet is mainly embodied as a combination of server and software program. They verify the identity of the operator according to the account number and password of the wallet, and after the identity verification is passed, bitcoin transactions can be carried out according to the operation instructions of the operator, which obviously has the function of automatic data processing and conforms to the characteristics of "computer information system, the act of invading such bitcoin wallets to obtain private keys objectively conforms to the constitutive elements of the crime of illegally obtaining computer information system data.
② Invasion of cold wallets
In practice, although cold wallets are not very convenient to use, they are still favored by some bitcoin holders because they do not have the risk of being attacked or cracked by the network. The problem is whether common cold wallets such as hard disks, U disks, disks, paper materials, etc. belong to "computer information systems" with automatic data processing functions. Generally speaking, private key carriers such as hard disks, U disks, and disks are more like simple data storage tools, which do not conform to the concept of "computer information systems" in people's minds, let alone paper materials.
Therefore, if the object of the actor's theft is the hard disk, U disk, disk or paper on which the victim stores the bitcoin private key, and then uses the illegally obtained bitcoin private key to control the transfer of the victim's bitcoin, his behavior may not conform to the constituent elements of the crime of illegally obtaining computer information system data, and it is difficult to evaluate with this crime. However, the so-called cold wallet and hot wallet are only the carrier of bitcoin private key, only the form of expression is different, only because of the simple carrier difference and the substance of the same behavior is not reasonable.
2. The crime of illegally obtaining computer information system data is difficult to avoid the problem of determining the price of Bitcoin.
As mentioned earlier, one of the important reasons for opposing the "theft" of bitcoin as theft is the determination of the amount of the crime after the theft is found, that is, there may not be a proper solution for the price determination of bitcoin. However, as described below, even if the "theft" of bitcoin is punished as the crime of illegally obtaining computer information system data, it is inevitable to determine the price of bitcoin.
The first issue is the sentencing standard after the crime of "stealing" bitcoin to illegally obtain computer information system data. Article 1 of the Interpretation of Computer Cases stipulates the prosecution standards for the crime of illegally obtaining computer information system data and the standard for upgrading the statutory penalty. This article stipulates: illegally obtaining computer information system data or illegally controlling computer information systems, in one of the following circumstances, It shall be deemed as "serious circumstances" as stipulated in the second paragraph of Article 285 of the Criminal Law ": (I) obtaining more than ten sets of identity authentication information for online financial services such as payment and settlement, securities trading, futures trading, etc.; (II) obtaining more than 500 sets of identity authentication information other than item (I); (III) illegally controlling more than 20 computer information systems; (IV) illegal gains of more than 5,000 yuan or causing economic losses of more than 10,000 yuan; (V) other serious circumstances. If the act specified in the preceding paragraph is committed under any of the following circumstances, it shall be deemed as "the circumstances are particularly serious" as stipulated in the second paragraph of Article 285 of the Criminal Law: the number or amount of (I) is more than five times the standards specified in subparagraphs (I) to (IV) of the preceding paragraph (II) other particularly serious circumstances.
Obviously, the "theft" bitcoin case does not involve the identity authentication information of online financial services or other identity authentication information. Even if the account password of the obtained bitcoin wallet is identified as identity authentication information, it is far from meeting the prosecution standard. Therefore, for the "theft" bitcoin case, the more feasible sentencing standard is still illegal gains or economic losses. In the case where the perpetrator transfers the stolen bitcoin to have illegal income, the amount of illegal income does not need to consider the price determination of bitcoin, but can be determined directly according to the actual illegal income of the perpetrator, which is not controversial. However, in practice, not all cases of "theft" of bitcoin have illegal income, because in many cases, the perpetrator did not transfer the bitcoin after stealing the victim's bitcoin, in this case, it is difficult to use illegal income as the sentencing standard, so the operation is relatively strong, and only the amount of economic loss caused to the victim is used as the sentencing standard, which inevitably involves the price determination of Bitcoin.
In judicial practice, some cases have encountered the above-mentioned difficulties, but the solutions are slightly different. Take the case of Zhong Chongjie tried by Beijing Haidian District People's Court mentioned above as an example. In this case, Zhong Chongjie did not change hands to make a profit after stealing the bitcoins of the victim unit, so there is no profit amount. In order to avoid possible disputes after determining the price of bitcoins, the Haidian Court bypassed Bitcoin itself in determining the amount of the victim's loss, but directly identified the "information technology service fee" and "security service fee" of 36000 yuan paid by the victim to another technology company after the case. In another case tried by the people's Court of Jiyuan City, Henan Province in 2019, while investigating the criminal responsibility of the perpetrator for the crime of illegally obtaining computer information system data, the court paradoxically appraised the price of the virtual currency "Ahi currency" involved in the case, and when determining the price of the virtual currency involved in the case, the price of the virtual currency involved in the case was determined at the lowest price according to the principle of fact that it is beneficial to the defendant. From the point of view of this article, the practices of the above two courts are hardly reasonable. Haidian Court's practice of bypassing Bitcoin itself and directly using the expenses incurred by the victim in the case as the basis for sentencing is undoubtedly an expedient measure. The case does not summarize satisfactory judgment rules and reasons, and is doomed to lack the theoretical and objective basis for further promotion. The practice of the People's Court of Jiyuan City, Henan Province has obvious logical contradictions, its practice of price determination of the virtual currency involved is undoubtedly a disguised recognition of the property attributes of the virtual currency, but in the conviction, it chose the obviously lighter crime of illegal access to computer information system data rather than theft.
3. It is difficult to determine a reasonable property disposal plan for the crime of illegally obtaining computer information system data.
In the case of "theft" of Bitcoin, because after all, it involves actual economic interests, even if it is finally classified as a computer information system data crime, the judicial organs still have to consider the issue of property refund and compensation when handling the case, otherwise it will not be able to resolve social conflicts., The effect of repairing social relations. However, when dealing with property, the first thing to be sure is that the victim has no right to bring an incidental civil action, because according to Article 175 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Criminal Procedure Law, the circumstances in which the victim brings an incidental civil action are limited to the violation of personal rights by crime or the destruction of property by criminals and material losses. These two situations do not exist in bitcoin theft cases, therefore, in such cases, the victim cannot file an incidental civil lawsuit ⅩⅣ.
Since the property issue cannot be resolved through incidental civil action, only recovery or restitution options can be considered. Article 64 of China's Criminal Law stipulates: "All property illegally obtained by criminals shall be recovered or ordered to be returned; the legal property of the victim shall be promptly returned to contraband and his or her own property used in the crime shall be confiscated. All confiscated property and fines shall be turned over to the State Treasury and shall not be misappropriated or disposed of on their own." In "theft" bitcoin cases, if the refund scheme is considered, the issue of the amount of refund will be involved. From the perspective of judicial practice, when the perpetrator sells the bitcoin involved for profit, the general people's court will directly recognize the amount of profit as illegal income and recover it, which can make up for the victim's loss to a certain extent and also avoid the problem of determining the price of bitcoin, however, in the case that the victim's loss is greater than the perpetrator's profit, it may not be able to fully compensate for the victim's loss, and there is a hidden danger that it cannot completely resolve social contradictions.
In addition, under the condition that the actor did not resell the bitcoin after "stealing" it for profit, there is also a theoretical problem in how to deal with the bitcoin held by the actor, because since the relevant case has been identified as the crime of illegally obtaining computer information system data to avoid confirming the property attribute of bitcoin, the actor cannot be required to return the illegally obtained bitcoin to the victim according to article 64 of the criminal law, because Article 64 of the Criminal Law stipulates that "the legal property of the victim shall be returned in a timely manner", if the judgment requires the perpetrator to return the bitcoin involved in the case to the victim, it is essentially recognizing bitcoin as the legal property of the victim. However, from the perspective of judicial practice, this does not seem to be a problem. First, in cases where the perpetrator did not realize the stolen Bitcoin after the incident, because of compulsory measures, the perpetrator or his family members will often take the initiative to directly return the Bitcoin to the victim before the judgment, so the above problems are often solved in an informal way in practice. On this issue, the representative case is still the Zhong Chongjie case heard by Beijing Haidian Court, which has been mentioned many times above. In this case, the defendant stole 100 bitcoins from the victim unit, returned 90 bitcoins after the case was committed, and the remaining 10 could not be found. Haidian Court finally decided to recover 10 bitcoins from the defendant Zhong Chongjie and return them to the victim unit. As mentioned above, whether this judgment of Haidian Court is in line with the provisions of Article 64 of the Criminal Law and whether it is in line with its thinking on the determination of the case is debatable.
3. The root cause of the disagreement is the unclear legal status of Bitcoin in our country.
There is no doubt that Bitcoin has data attributes, what is controversial is whether it has property attributes, and as mentioned earlier, in today's widespread and recognized virtual property, the main reason for denying Bitcoin has property attributes lies in China's regulatory policy stance on Bitcoin. China's regulators took regulatory measures on Bitcoin as early as 2013. The people's Bank of China, the Ministry of Industry and Information Technology, the China Banking Regulatory Commission, the China Securities Regulatory Commission and the China Insurance Regulatory Commission issued a notice on preventing Bitcoin risks on December 3, 2013. The document explicitly denies the monetary nature of Bitcoin, but it believes that Bitcoin is a specific virtual commodity. On September 4, 2017, in response to the increasing number of token issuance financing in the society, the People's Bank of China, the Central Cyberspace Administration of China, the Ministry of Industry and Information Technology, the State Administration for Industry and Commerce, the China Banking Regulatory Commission, the China Securities Regulatory Commission, and the China Insurance Regulatory Commission issued the Announcement on Preventing the Financing Risks of Token Issuance, which clearly prohibits financing in the form of token issuance, and once again emphasizes the non-monetary attributes of virtual currency. On May 18, 2021, the "Announcement on Preventing the Risk of Virtual Currency Transaction Speculation" issued by the China Internet Finance Association, the China Banking Association, and the China Payment and Clearing Association also emphasized once again that "virtual currency is a specific virtual commodity that is not issued by the monetary authority. It does not have monetary attributes such as legal compensation and compulsion. It is not a real currency and should not and cannot be used as currency in the market".
From the above-mentioned characterization of bitcoin and other virtual currencies by China's regulatory authorities, it can be seen that although China denies the monetary properties of bitcoin and other virtual currencies, it does not deny that bitcoin belongs to virtual commodities, which is also the basis for the judgment of some cases of criminal responsibility for "theft" of bitcoin with the crime of theft. Looking at the above regulatory provisions, China's restrictions on Bitcoin are basically aimed at financial institutions, payment institutions and other organizations, such as prohibiting financial institutions and payment institutions from using virtual currency to price products and services, operating insurance business related to virtual currency or providing customers with virtual currency registration, trading, clearing, settlement and other services related to virtual currency. In other words, my country does not prohibit individuals or units from holding Bitcoin, nor does it prohibit Bitcoin transactions between market entities. There are also huge differences in civil judicial practice on whether Bitcoin transactions are protected by law.
This is the ambiguity of my country's current Bitcoin policy. On the one hand, it gives a negative evaluation of Bitcoin and prohibits financial institutions and other organizations from conducting business related to it. On the other hand, it affirms the status of Bitcoin as virtual property and allows or even protects private individuals. Bitcoin transactions. The judiciary inevitably needs to take into account the social impact of the results when dealing with bitcoin-related criminal cases, so it is necessary to consider the relevant regulatory policies of bitcoin, but the ambiguous attitude of China's regulatory authorities towards bitcoin undoubtedly confuses the judiciary in dealing with bitcoin-related criminal cases. For example, in the case of Luo Yeyi theft tried by the people's Court of Jing'an District of Shanghai mentioned earlier, the judge cited the provisions of the notice on preventing the risk of Bitcoin that Bitcoin is a specific virtual commodity in the reason for the judgment, and then punished the case as theft.
4. Epilogue
As the most accepted and recognized virtual currency in the world today, Bitcoin's economic value has been widely recognized, and there are more and more cases of stealing Bitcoin in judicial practice. However, because Bitcoin may have both data and property attributes at the same time, there are two main qualitative differences in judicial practice based on the property differences of Bitcoin, the crime of theft and the crime of illegal access to computer information system data. However, objectively, there are defects in both qualitative schemes. Although the highest judicial organ holds this position, it cannot be denied that the characterization of "theft" of bitcoin as the crime of illegally obtaining computer information system data is more like an expedient measure to avoid discussing the property attributes of bitcoin, the practice of directly characterizing the "theft" of Bitcoin as theft inevitably needs to face questions from the perspective of criminal policy and feasibility, and both approaches are difficult to say. The fundamental reason for this result is that the legal status of Bitcoin in China is not clear and the regulatory policy is ambiguous.
It should also be pointed out that the "cracking down on bitcoin mining and trading" first proposed by the Financial Stability Committee of the State Council at its 51st meeting on May 21, 2021 may be the most severe statement of the Chinese government to bitcoin so far. The policy of cracking down on bitcoin trading is likely to have an impact on the handling of cases involving bitcoin and other virtual currencies, specifically, in criminal cases, the judiciary is more inclined to characterize bitcoin-related cases as computer crimes such as the crime of illegally obtaining computer information system data.
References:
I See Zhang Mingkai, "The Nature of Illegal Acquisition of Virtual Property", Law, No. 3, 2015.
Ⅱ Case No.:(2020) Yue 05 Sentence Final No. 10
Ⅲ Case No.:(2020) Hu 0106 Xing Chu No. 551
Ⅳ Case No.:(2016) Zhejiang 1023 Xing Chu No. 384
Ⅴ Case No.:(2015) Dong Xing Chu Zi No. 1252
Ⅵ See Wang Wei and Nan Celebrate, "On the Nature of Bitcoin Theft," in Western Law Review, No. 5, 2018.
Ⅶ Case No.:(2020) Yue 0307 Xing Chu No. 1462
Ⅷ See Zhou Mingchuan, "Qualitative Analysis of Bitcoin Theft", Journal of Nantong University (Social Science Edition), Vol. 36, No. 3
Ⅸ See Hu Yunteng, Zhou Jiahai and Zhou Haiyang, "Understanding and Application of the Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft", in People's Justice, No. 15, 2014
Ⅹ See Yu Haisong, "Research Opinions on How to Qualify the Profits of Illegal Sale of Game Coins by Using Computers to Steal Others", "Judicial Research and Guidance", Series 2, 2012
ⅩⅠ Case No. (2018) Beijing 0108 Punishment No. 1410
ⅩⅡ Case No. (2018) E Xing Zhong 1001
ⅩⅢ Case No.:(2019) Yu 9001 Xing Chu No. 93
ⅩⅣ Same as note 6
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