Note that the following virtual currency transactions are prone to criminal risks

Recently, the virtual currency market has ushered in a sharp drop. Luna ( LUNA ), which once ranked third in market value, has been shorted, and its price has returned to zero infinitely. Chinese leeks have begun to emerge, and they have entered the virtual currency track to find new opportunities to get rich overnight . Then, is virtual currency a myth of creating wealth, or a sickle for cutting leeks, or even a trap that hides criminal risks?

Next, based on the cases I have undertaken and relevant judicial decisions, I will tell those who are engaged in or will be engaged in virtual currency transactions that some of their seemingly ordinary behaviors may have touched the edge of criminal offenses.

Generally, the trading behavior of virtual currency is based on the platform for transactions, such as XX, XX, and XX, but because ten ministries and commissions issued the "Notice on Further Preventing and Dealing with the Risk of Virtual Currency Trading Hype" on September 24 last year, it is clear that the virtual currency Virtual currency-related business activities of currency transactions are illegal financial activities. This has led to leading exchanges to start clearing mainland users, and some users who are not good at using ladders or registering with the identity information of international friends began to enter a large number of pure OTC transactions, that is, using WeChat groups, airplane groups, etc. Social software buying and selling virtual currencies such as USDT , this pure off-exchange trading method has existed for a long time, but the proportion of the overall transaction is not high, the reasons are as follows:

First of all, because the two parties to the transaction do not have a sufficient foundation of trust, even with the endorsement of the group owner or the middle party, there is still a high risk of being cheated.

Secondly, pure over-the-counter transactions cannot perform KYC certification on the counterparty, and there may be an inflow of stolen funds, resulting in the risk of freezing the bank card.

Thirdly, because the transaction is a verbal agreement on social software, the records cannot be effectively preserved, and there are records on the chain in time, but the real information of the wallet address holder cannot be confirmed. high.

However, after the release of the 9.24 "Notice", due to the withdrawal of the platform and concerns about related risks, a large number of retail investors or OTC merchants have transferred to pure off-exchange transactions, which has led to a surge in pure off-exchange transaction volume. The surge means profit, so the pure off-exchange transactions, which are the hotbed of crime, have gradually poured in a large amount of criminal funds such as wire fraud and online gambling. However, some novices who have just entered the industry are not familiar with pure OTC trading rules, and cannot achieve better risk isolation, such as reviewing capital flow, KYC certification to confirm real-name information, etc., resulting in extremely easy receipt of funds involved in the transaction process. The phenomenon of freezing cards occurs, and once the bank card is frozen, because it is impossible to provide more detailed information on the transaction process and the counterparty, this leads to the fact that the bank card will not be unfrozen, and it will become a criminal suspect identified by the public security organs . It constitutes the crime of aiding information network criminal activities or the crime of concealing criminal proceeds and criminal proceeds.

The legal basis for public security organs to determine that pure off-site transactions constitute accreditation or concealment is Article 11 of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Illegal Use of Information Networks and Aiding Information Network Criminal Activities, etc.: " To commit crimes for others Provide technical support or assistance, under any of the following circumstances, it may be determined that the perpetrator knows that others use information networks to commit crimes, unless there is evidence to the contrary:

(3) The transaction price or method is obviously abnormal;

And this kind of pure over-the-counter transaction, due to the lack of counterparty information, and the transaction is matched on social software such as WeChat or airplanes, and the object of the transaction is virtual currency, which belongs to a kind of virtual commodity, which is inherently hidden, which leads to In the process of judging whether it constitutes "knowledge", it is easy for the public security organs to judge it as knowing the circumstances of the predicate crime, so as to carry out criminal strikes.

Generally, social software such as WeChat or Airplane is used for transactions. Even if it may be considered that the transaction method is abnormal and becomes the target of attack, the probability of this is still relatively small, because WeChat or Airplane can restore the chat history through technical means, even if it is deleted by mistake. , can also be explained clearly by investigating the evidence. However, in the currency circle, there are still some people who have a fluke mentality or a novelty psychology, and use encryption software such as bats to conduct virtual currency transactions. This encryption software uses the principles of cryptography and has strong anonymity itself, and it will burn after reading. , the transaction process cannot be restored by any technical means. This leads to the fact that once your bank account receives the funds involved in the case and is frozen, when the public security organ asks you to cooperate with the investigation, you do not have any evidence to prove that your transaction is a normal transaction, and you cannot provide detailed transaction information. It is possible to provide a point-to-point transfer record on the chain, but it is still unable to explain the detailed process of the transaction in detail. This makes the public security organs seriously suspect that you have criminal motives.

According to several cases involving virtual currency transactions in a certain place in Hunan represented by the author, we discussed the legitimacy of virtual currency transactions with the public security organs in the early stage, and the public security organs also listened to our opinions. Encryption software conducts virtual currency transactions, and there are many funds involved in the bank card, and it is impossible to prove through a detailed chain of evidence that there is no subjective "knowledge" in the transaction process, which has caused our defense to fall into a great passivity. , although in theory we have always said that the crime should be suspected, but in practice, the logic of the investigation agency often starts with the presumption of guilt . The contradiction between theory and practice cannot be eliminated in a short time, so what we need to do is to try our best to Formed a relatively complete chain of evidence, thus self-proving innocence. Although in these few cases , we used a large amount of indirect evidence to support our "ignorance" of the predicate crime, and finally achieved a relatively good result, but this is only an example, and a large number of cases are ultimately caused by the use of encryption software by the parties concerned. trading methods, and fell into the quagmire of criminal punishment.

So what is the legal basis for the public security agency to determine that the use of encryption software for transactions is "knowingly"? Still according to Article 11, Paragraph 5 of the Interpretation of Several Issues Concerning the Application of Laws in Criminal Cases of Illegal Use of Information Networks and Helping Information Network Criminal Activities, etc.: Frequent use of covert Internet access, encrypted communications, destruction of data and other measures or the use of false identities , evading supervision or evading investigation;

Therefore, once again, I would like to remind friends in the currency circle that encryption software is risky and should be used with caution.

Generally speaking, retail investors are not prone to such problems. Most of them are OTC merchants. In order to make arbitrage profits, they need to conduct high-frequency transactions in a short period of time. However, after the introduction of 9.24, although it has not been included in the legal sense The scope of criminal offenses, but still a negative evaluation on the policy . Therefore, the public security organs adopt a stricter review attitude towards cases involving virtual currency. As a result, if the actor conducts high-frequency transactions in a short period of time, his bank card flow will be very large. Once there is an inflow of funds involved in the case, the public security agency will first subjectively determine that the actor has abnormal behavior based on the amount of bank flow. Then there will be an interrogation. During the interrogation, if the parties concerned do not explain clearly, or the records are flawed, there is a high probability that they will be identified as involving letters of help or concealment.

Among the several virtual currency criminal cases in a certain place in Zhejiang that the author represented, the public security agency classified it as a crime of helping trust because of the funds involved in the bank card of the OTC merchant, and the capital flow was too large, and all the funds in the bank card were confiscated. The turnover is all judged as the funds involved in the case. This judgment method is obviously wrong. In the end, we also corrected it during the defense process. However, because of the high-frequency transactions of its bank cards, the bank turnover of one card reached 10 million a day, which led to In the process of defense, it is necessary to use a large amount of materials to restore the authenticity of each transaction, which not only increases the workload of the public prosecutor, but also makes the defense of the entire case more difficult. Moreover, in daily high-frequency transactions, unless the source of funds of the counterparty is known to be legal funds, it is extremely easy to receive the funds involved in the case, resulting in the freezing of bank cards, thereby causing criminal risks, and high-frequency transactions are also easily frozen by banks for risk control. This causes the card to appear as a non-cabinet phenomenon.

Moreover, according to Article 12, paragraph 2 of the Interpretation of Several Issues Concerning the Application of Law in Criminal Cases of Illegal Use of Information Networks and Assistance in Information Network Criminal Activities, etc., the payment and settlement amount of more than 200,000 yuan is classified as a crime of aiding trust. serious circumstances. "Those who carry out the acts specified in the preceding paragraph, and it is indeed impossible to verify whether the assisted object has reached the level of a crime due to objective conditions, but the total amount of the relevant amount exceeds five times the standards specified in items 2 to 4 of the preceding paragraph, or causes particularly serious consequences. , and the perpetrator should be held criminally responsible for the crime of helping information cybercriminal activities." This provision clarifies that if the funds involved in the case cannot be determined, as long as the bank turnover exceeds five times the 200,000, it can also be characterized as The circumstances of the crime of aiding trust are serious, although the 2022 "Meeting Minutes on the Application of Laws in the "Card Breaking" Action" clearly stated that "when applicable, it should be grasped that the one-way inflow of funds into the credit card involved exceeds 300,000 yuan, And at least 3,000 yuan of it has been verified to be fraudulent funds . If the perpetrator can explain the legal source and nature of the funds, it should be deducted.” The threshold for the crime of helping trust has been raised, requiring that the funds involved in the card must be more than 3,000 yuan It can be determined that it constitutes a crime, but this is only a drop in the bucket compared to the OTC merchants with a turnover of tens of millions a day.

There is a saying in the currency circle that if the bank card has not been frozen due to currency speculation, it must be a small scale . This sentence also reflects that the frozen card phenomenon is a very common phenomenon in the currency circle. For those old people in the currency circle, not freezing their cards is like playing basketball and being told that their sneakers are fake. They feel insulted. But this is just a joke. Why players in the currency circle are prone to freezing cards, the previous articles of this official account have already explained very clearly. If interested viewers can read more, I won’t repeat them here.

Before the 9.24 "Notice" was issued, if the card was frozen and continued to trade, it would be frozen again. Although there may be a little criminal risk, it is generally not a big problem. As long as it does not involve pure over-the-counter transactions or other abnormal transactions, it can generally be explained clearly through legal channels, thereby unfreezing the bank card and eliminating criminal risks. However, after the 9.24 "Notice" was issued, if the bank card is frozen for trading virtual currency, then you need to pay attention. If you continue to engage in the trading of virtual currency such as USDT, if you are frozen again, you will face this huge criminal risk.

The author represented a case in a certain district of Shanghai last year. The case occurred after September 24. He was detained because he received funds involved in the transaction of virtual currency. The card has been frozen. As an ordinary citizen, if the bank card is frozen, it should be dealt with, and the bank will also inform the relevant reasons for the freezing. Then after he knows the reason for the freezing, he still allows him to continue to engage in the business, so he can infer It shows that they have a clear understanding of the illegality of the transaction, which belongs to the category of "knowledge" . Of course, some people will argue that my bank card was frozen. I thought it was bank risk control, so I didn't deal with it. This kind of explanation is actually very weak, because it is generally presumed that "knowingly" is to treat people as an adult rational person Think about it, unless there is a cognitive impairment, as an ordinary citizen, if you encounter a bank card freezing problem, you will immediately go to the freezing authority to inquire about the reason, and deal with it. Left unattended, this is a very abnormal behavior in the eyes of the police, procuratorate, and law.

Moreover, according to the first paragraph of Article 11 of the Interpretation on Several Issues Concerning the Application of Law in Criminal Cases of Illegal Use of Information Networks and Helping Information Network Criminal Activities, etc., those who still carry out relevant acts after being notified by the supervisory departmentare "knowingly" , even if your card is frozen in practice, the bank may not inform you, but if you do not deal with the freezing and continue to engage in virtual currency trading, and then your bank card is frozen, then your behavior is completely If the standard of "knowledge" of the presumption can be met, it can be evaluated by the crime of accomplices. Of course, some friends may say that I have been frozen several times and have been stuck, why haven't I been caught yet? I want to say that luck is very good, but don't have a fluke mentality. Sometimes it may not be that you don't catch it, but that the time has not yet come.

Many people in the currency circle have the habit of testing whether their bank cards can be used before making a transaction. Generally, they transfer change ranging from one to ten yuan to Alipay or other cards. If the card is transferred out, then the card is a card that can be used normally, and the transaction can continue. For ordinary players in the currency circle, this kind of card testing behavior is a risk avoidance method, fearing that after the bank card is frozen, a large amount of funds will flow in, which will lead to unreasonable losses for themselves. However, this kind of card testing behavior is completely abnormal in the eyes of the public security law, and this kind of card testing behavior is not only owned by the currency circle, but is often used in some money laundering crimes.

For example, in some money laundering crimes, some people buy a large number of bank cards of rural elderly people as a tool for running points and money laundering. Because the card buyers themselves are involved in crimes, they will test each card when running points or transferring funds. That is, the test card , and the operation mode is the same as that mentioned above. Then this kind of behavior naturally leaves an inherent impression of criminal tactics in the eyes of the public security bureau . Generally, players in the currency circle choose to test cards, although the starting point is to protect their own interests.

However, the card test behavior also presumes that the card tester knows that there will be a problem of frozen cards in the currency circle transaction process, that is to say, knowing that there is a possibility that the upstream funds may be involved in the case, then you know that you may help upstream criminals transfer funds or Provide payment and settlement channel, but still provide, then from a legal point of view, there is a mentality of knowing + laissez-faire, which belongs to indirect intention. In a general sense, it can be used as a main basis for presuming "knowledge".

In the cases represented by the author, the public security law presumes that the parties have "knowledgeable" criminal intentions in this way . Although we have also made a reasonable explanation, saying that although there is knowing in the card testing behavior, this kind of knowing is a general knowing. , not specific knowledge, and the determination of "knowledge" whether it is a letter of support or concealment is a specific knowledge requirement for a specific amount of funds involved in the transaction. However, although such explanations and defenses have a certain effect, However, after September 24, the possibility and space for defense became weaker. Therefore, if there is a problem with the card testing behavior, the possibility of criminal risk is extremely high.

In addition to the above five common behaviors, there are some other behaviors that also have great risks. For example, there have been a lot of offline cash transactions recently . This kind of behavior will not only include you in risk control management by the bank, but also Those involved will directly call the police, leading to some negative consequences. Similarly, cash transactions are easy to be phished for law enforcement . We have done several such cases in a certain place in Fujian at the beginning of the year. At the same time, cash transactions are also easy to be robbed or defrauded, and the risk factor is very high . There are also some transactions, such as transactions through foreign exchange channels, that is, without touching RMB, and finally transferring into RMB through currency exchange. This may not only involve trust or concealment, but may also constitute the crime of illegal business operations.

In the currency circle, trading behaviors vary greatly, and it is not enough to list them all, but for any trading behavior, it is still recommended to trade cautiously. Under the current background, virtual currency is not protected by law, and the related risks are very high. In order to protect yourself Legal rights and interests, prudent investment, good risk isolation, actively pay attention to the legal dynamics of the currency circle, and never be greedy for small profits, and go to the road of no return.

Attorney Liu Lei:

Head of the "Digital Economy and Financial Technology Team" of Beijing Yingke (Shanghai) Law Firm, Master of Laws. He also serves as a researcher at the Artificial Intelligence Law Research Institute of Gansu University of Political Science and Law, a member of the GLG expert bank, and a legal consultant for the Asian Digital Bank and the Asia Pacific Investment Bank.

Focus on legal practice and theoretical research in the field of digital finance such as blockchain, virtual currency, NFT, Web3.0, cross-border payment, and data compliance, and have handled more than 200 related cases. Published "The Dilemma and Countermeasure Analysis of the Identification of Private "Digital Currency" Attributes in Judicial Practice", "On the Protection of Frozen Persons Frozen in Telecommunications and Network Fraud", "Conflict and Balance between Investigative Power and Civil Rights-"Card Breaking Action" 3 academic papers on the protection path of citizens' property rights in China; hundreds of professional articles have been published on the public account "Rhythm Currency Circle", Jinse Finance, Babbitt, and Toutiao. Regarding the legal issues of virtual currency and NFT, he has been interviewed by "China Intellectual Property News", "Daily Economic News", "Fangyuan", "Golden Finance" and other media.

He has been invited as the "Artificial Intelligence Course for Doctoral Graduates of Hainan University", "Blockchain and Law Course for Master of Laws of Central University of Finance and Economics", "Gansu Provincial Lawyers Association Youth Leading Talent Training Course", "Hainan Foreign Legal Service Lawyer Talent Training Course" "Teaching. He has won honorary titles such as "Top Ten Future Stars" of Yingke National Youth Work Committee, and "New Decade·Ten Youths" representative of Yingke (Shanghai). Set up the Douyin account "Shanghai Liu Lei Lawyer" to popularize legal knowledge in the field of blockchain and virtual currency for the public.