Source: Mankiw Blockchain Law
01 Case Introduction
Cryptocurrency Player A sells the virtual currency USDT off-site and transfers USDT out (or "out of U") there was a little accident. According to A's description, when buyer B transfers 80,000 yuan (or "withdraws") via WeChat, A, as the seller, should transfer 11,000 USDT to B. After receiving the transfer of 80,000, A, who had just woken up, became careless. His head did not flash, and he kept muttering about 80,000 and 80,000. He subconsciously opened the cold wallet and entered "80000". He moved his left and right hands in slow motion, and then swiped again. After a while, he transferred 80,000 USDT out. According to A, it was very fast at that time, and it was transferred in a snap, and there was no time to disconnect the network and retreat. When the interface showed that 80,000 Us had been successfully produced, A suddenly reacted: Meow had produced too many Us! A immediately contacted B, hoping to recover the extra USDT transferred. But B doesn't care about martial ethics at all. He bullied A, a veteran comrade born in the 1990s in the currency industry, and immediately blackballed A and disappeared after accepting U. After asking around, A found some of B's personal information. Now A finds Lawyer Mankiw and asks if he can sue B to get back the mistakenly transferred USDT.
After receiving this case, the lawyer was shocked and empathetic, and felt that Mr. A’s experience of transferring the wrong account was very representative. We believe that ifthe transfer was made by mistake when exporting U, you can either claim that the virtual currency transaction is invalid, or you can file a lawsuit for unjust enrichment or a private prosecution for embezzlement, and request the return of the excess USDT.
The following analysis mainly focuses on the above two return strategies.
02 Mankiw Lawyer Analysis
Strategy 1: Claim that all virtual currency transactions are invalid , requesting the return of transaction-related property, that is, returning to the state before the money was withdrawn and the U was not withdrawn, by completely denying it, in order to avoid losses.
According to the "Notice on Further Preventing and Dealing with Speculation Risks in Virtual Currency Transactions" jointly issued by the People's Bank of China and other ten ministries and commissions (hereinafter referred to as the "Ten Ministries and Commissions Notice"), virtual currencies do not have legal It is compensable and should not and cannot be circulated in the market as currency. Business activities related to virtual currency are classified as illegal financial activities, including the exchange business between legal currency and virtual currency, the exchange business between virtual currencies and other related activities. They are all considered illegal financial activities and are resolutely banned.
In judicial practice, sales contracts involving virtual currencies are often deemed invalid by the courts. Just because a legal act is invalid does not mean that it has no legal consequences. According to the provisions of the Civil Code on invalid civil acts, both parties to the transaction shall return the property related to the transaction; if the property cannot be returned, it shall be compensated at a discount; if there are other losses in addition to the property related to the transaction, each party shall bear liability respectively according to the fault of the transaction. .
However, Although virtual currency transactions are often deemed invalid, there is uncertainty about whether claims for full return of property can be supported, which can be described as "metaphysics." In practice, courts are inconsistent in their treatment of the return of property related to virtual currency investment.
Take the return of investment funds for currency speculation as an example. At present, the court has three main attitudes: ① supports full return; ② supports partial return; ③ investors bear their own risks and the court will not support the request for refund. .
The above three types of judgments and processing results are all considerable in judicial practice, and they can be said to be equally divided. Therefore,when adopting a litigation strategy to claim that currency-related transactions are invalid, it is necessary to fully consider the court and judge’s tendency to adjudicate currency-related cases. At the same time, it is even more necessary to argue with reason and advocate that all parties to the transaction should receive simultaneous, full and double refunds. That is, after the virtual currency transaction is invalid, the property status of both parties should be restored to its original state, with one party returning money and the other party returning money. However, it cannot be concluded that the currency speculation behavior is invalid based on other provisions of the Civil Code and notices from ten ministries and commissions. , the conclusion is that investors shall bear the losses themselves. For specific cases and analysis, please see the previous article "If there is a dispute when investing in virtual currencies, can the investment be refunded?" 》
Therefore, by claiming that the civil activities related to virtual currency transactions are invalid, the original property status can be restored to avoid losses. However, in view of the uncertainty of judicial decisions, if you want to obtain a full refund when the transaction is invalid, you need to consider the referee's tendency and make professional arguments.
Strategy 2: Sue for unjust enrichment or private prosecution for misappropriation, and request the return of the mistakenly transferred USDT. At this time, efforts should be made to protect the virtual property by law and avoid discussing the issue of virtual currency transactions. many.
In the above case, A has the right to require B to return the mistransferred USDT on the grounds of unjust enrichment. As for the over-transferred USDT, Buyer B has no legal reason to occupy it. Seller A has the right to require it to return the mis-transferred USDT or pay the consideration, if Buyer B is unwilling to spit it out. , then A can also sue the court for the crime of misappropriation for the USDT that was transferred by mistake, and advocate that B be held criminally responsible.
What needs to be noted at this time is that you should not ask for trouble when filing a case or litigation. You should stick to the mistransferred USDT to claim your rights, and never claim the virtual currency that is undisputed by both parties. Coin trading is a waste of words. In particular, we must avoid leaving the impression to the court that there were too many U-turns when trading virtual currencies, and the act of trading virtual currencies was valid, and only the return of the USDT that was mistakenly transferred was required - originally it was only a case of mistaken belief. If there is no reasonable basis for transferring part of the transaction, you can request a return of U; if it is explicitly or implicitly mixed with a claim that the virtual currency transaction is valid, it is tantamount to the court recognizing that the virtual currency transaction is valid. Given that the current courts basically do not recognize the validity of virtual currency-related transactions, the above-mentioned six-finger-tickling petition will be a bad thing.
On the contrary, only claiming for the return of the mistakenly transferred part, while avoiding talking about the virtual currency transaction, deliberately downplaying it, or even making it clear that both parties have no dispute about it, can greatly reduce the amount of judgment. Pressure,allows the judge to only make a judgment on the mistransferred part: although virtual currency is not legal tender, it is recognized by law as virtual property. Therefore, the wrong delivery of virtual property is the same as the wrong delivery of physical property. , should be returned in accordance with the law.
Just like virtual currency is stolen or cheated in reality and should be returned to the original owner after recovery, virtual currency that has been transferred by mistake should also be returned to the owner, that is The legal protection of virtual property is not false.
In short, in litigation, we must strengthen the legal protection of virtual property and continue to work hard to increase 10086. Never focus on the validity of "virtual currency trading activities" Arguing is a waste of time, and arguments come and go. If you choose an inappropriate litigation strategy, you will lose everything if you are careless.
It needs to be emphasized that if you want to recover USDT, even if you only sue for the mistakenly transferred USDT, since the mistaken transfer occurred during the process of withdrawing U, after all, it is still a "related" activity of virtual currency. , so the court may also use this as a reason to refuse to accept the case, dismiss the lawsuit, or rule that all parties bear the risk at their own risk. In addition, if instead of transferring more USDT, you transfer more money, it sounds more pleasant to recover the extra money compared to recovering the virtual currency. At this time, it may be easier to file and accept the case, but There will still be the risk of litigation mentioned above.
To sum up, through prosecution for unjust enrichment or private prosecution for embezzlement, you can directly recover the mistakenly transferred USDT. When filing the case, you can talk about the mistaken transfer of USDT, but you must not talk about the buying and selling of USDT. : USDT, as a virtual currency, cannot be circulated in the market as legal currency, and related activities are illegal financial activities. However, as a virtual property, USDT is qualified as an object protected by law. If it is stolen, snatched, robbed, or cheated, the owner can get it back based on property rights. After all, mistransfer operations are not "virtual" prohibited in the notice of ten ministries and commissions. Currency Related Business Activities”. Therefore, when filing a case involving currency disputes, the mistransferred USDT part must be "cut off" from the transaction between the two parties in order to improve the efficiency of case acceptance. This kind of "cutting" is to tell the case-handling agency: The parts of the previous transaction where the two parties were like-minded were willing to fight or suffer. This is completely consistent with "own risk" behavior and should be ignored when handling the case. But the subsequent mistransfers, such as A's "handicap" behavior of accidentally handing over virtual property to others, do not belong to the relevant activities prohibited in the notice of the ten ministries and commissions. In other words, you have to take care of it!
03 Mankiw Lawyer Suggestions
1. Coin Circle There are risks, please be cautious when trading. It is recommended to trade over the counter in a regular exchange. Although it is a little expensive, it is guaranteed. There is a risk of being robbed or cheated when trading over the counter or offline. The bigger the wind and waves, the more expensive the fish, but it can also easily capsize the boat. Be careful when withdrawing money or transferring funds. Even if you can't drink some 105-degree hot water to cool down, you can still chew Yida or Xuanmai to wake up if you can. It is better to eat too much than to say the least, and not to do the most important things.
2. How can I get it back if I accidentally made too many transfers when leaving U? Either we should fight to the end and claim that the entire transaction is invalid, requiring both parties to return their own money, and avoid losses by returning to the starting point; or we can only claim that the unjust gains should be returned to the part of the USDT that was mistakenly transferred. It’s better to avoid doing this “half-baked” operation that advocates that mistransferred USDT should be returned while at the same time advocating that virtual currency transactions are legal and valid.
3. The recovery of accounts involved in U-transfer errors is difficult, but it is not hopeless. In view of the complexity of virtual currency-related businesses, it is even more necessary for professionals and case handlers to actively communicate effectively. Lawyers never promise to win, but professionals who are a combination of law and currency circles can use both hands to fight for greater rights and interests for their clients.
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