Author: Lawyer Shao Shiwei
OTC OTC trading in the currency circle. Simply put, it means paying money (legal currency) with one hand and currency (virtual currency) with the other hand. Our country does not prohibit transactions between individuals. .
Mainstream individual OTC merchants rely on large platforms such as exchanges and wallets to compete with speculation. Although OTC merchants will conduct KYC authentication (Know your customer) for users to conduct transactions, most merchants do not have the ability to identify black money. Moreover, if the merchant's transaction volume becomes larger and larger, it is inevitable to encounter black money. Previously, the arrest of Zhao Dong (the founder of the digital currency financial platform RenrenBit and the co-founder of Moji Weather), a tycoon in the currency circle, caused great shock in the circle.
One of the common crimes involved in the business process of OTC merchants is to cover up , the crime of concealing criminal proceeds and criminal proceeds. This crime is stipulated in Article 312 of the Criminal Law of our country, which refers to the act of harboring, transferring, purchasing, selling on behalf of, or concealing or concealing in other ways, knowingly knowing that the proceeds are criminal proceeds and the proceeds generated therefrom, and the prison term is three years. The following fixed-term imprisonment, criminal detention or surveillance, and concurrently or solely a fine; if the circumstances are serious, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and concurrently fined.
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The Procuratorate alleged that at around 10:00 on October 24, 2019, Wang Someone received a fraudulent call with the number 152******** claiming to be "Manager Zhou", and Wang transferred RMB 351,000 in cash to the account. At about 14:00 that day, Shan 2 also received a fraud call with the number 152********, and Shan 2 was defrauded of RMB 69,000 in cash. Later, the two victims reported the crime. After investigation, the public security agency found that the victim’s money flowed into the bank account of defendant Zhou Pengnan.
The defendant Zhou Pengnan was on Huobi.com and OKEX Register an account on the platform and engage in USDT legal currency transactions. On October 24, 2019, the defendant Zhou Pengnan bought more than 600,000 yuan at an average price of about 7.12 yuan per unit and sold it at a unit price of 7.39 yuan (the sales price was much higher than USDT’s normal price of 7.11-7.13 yuan), which was significantly different from the market price. A USDT virtual currency was cashed out to a telecommunications fraud suspect, making an illegal profit of more than 150,000 yuan.
This court believes that the defendant Zhou Pengnan was in the virtual The currency trading platform does not set the registration time conditions for the purchaser, and conducts repeated transactions with the other party at a price that is significantly higher than the market. It should be recognized that the source of the other party's funds is unclear and may be criminal proceeds, causing the other party to transfer property, and its behavior constitutes cover-up and concealment. Proceeds of crime. The defendant Zhou Pengnan was ultimately convicted of covering up and concealing criminal proceeds and was sentenced to six months in prison and fined RMB 30,000.
The criterion for the construction of this crime is the perpetrator’s responsibility for the crime The crime is subjective knowledge, and parties involved in criminal cases often use subjective ignorance as a defense. So, how is "knowingly knowing" in "knowingly knowing that they are criminal proceeds and the proceeds generated therefrom" determined injudicial practice? Two common views are as follows:
1. The perpetrator’s bank card has been frozen
The reason for the conviction of the judicial authority is: the card was frozen because of illegal and criminal acts, and the perpetrator had his card frozen before, which shows that the OTC merchant knew that the behavior he was engaged in was illegal and criminal, and he continued to engage in it even though he knew it. This transaction behavior is enough to prove that the OTC merchant meets the subjective knowledge in the crime of concealment, thus constituting this crime.
2. The perpetrator frequently Transfer funds to multiple bank accounts
Refer to "The Highest Article 11 of the Interpretations of the People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Criminal Cases such as Illegal Utilization of Information Networks and Assistance in Criminal Activities on Information Networks, "Providing technical support or assistance to others in committing crimes shall fall under any of the following circumstances" , it can be determined that the perpetrator knows that others are using the information network to commit crimes, except where there is evidence to the contrary: (3) The transaction price or method is obviously abnormal”,
Article 1 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Money Laundering and Other Criminal Cases", one of the following situations occurs , it can be determined that the defendant knows that they are criminal proceeds and the proceeds thereof, except where there is evidence to prove that he really did not know: “(5) Assisting others to deposit huge amounts of cash in multiple banks without legitimate reasons accounts or frequent transfers between different bank accounts",
Regarding the above points, this lawyer believes that:
First, Regarding cards that have been frozen, some police officers freeze accounts up to level seven or eight, which may involve multiple upstream and downstream parties for a certain transfer. Therefore, if the perpetrator is blocked, it can only mean that his related transaction flow or his upstream and downstream transaction flow has been suspected of illegal crimes, but it does not mean that the perpetrator himself is guilty.
Second, the fact that the perpetrator has been frozen and the current situation involves concealment If the facts of the crime are not the same, it cannot be directly deduced that the perpetrator knows that the previous act is illegal, so the actor continues to engage in the latter act must also be suspected of a crime.
Third, over-the-counter transactions between natural persons are not prohibited in our country . According to the 2017 "Announcement on Preventing Token Issuance Financing Risks" (referred to as the Announcement), the prohibited businesses are limited to ICO (Initial Coin Offering) and exchanges are prohibited from engaging in exchange and information intermediary businesses.
Although the trading behavior of OTC merchants is not prohibited by Chinese law, our country It also recognizes the property attributes of virtual currency, but because of its decentralization, anonymity and other attributes, virtual currency can easily be used by criminals and become a tool for money laundering. OTC merchants need to fulfill their obligations of prudent verification to the greatest extent during the transaction process and retain corresponding evidence, and the transaction price must also comply with the market price to prove that they have no "subjective knowledge" of others' illegal conduct.
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