Author:
Lawyer Zeng Jie is a financial crime defense lawyer, a senior partner of Guangdong Guangqiang Law Firm and the director of the Defense and Research Center for Illegal Fundraising Cases.
Lin Anqi is a researcher at the Financial Defense Center of Guangdong Guangqiang Law Firm.
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Introduction:
In virtual currency transactions, the use of cash transactions to obtain "stolen currency" through the use of information network criminal activities such as telecommunications fraud, online gambling platforms, etc., does this mean that the perpetrator clearly knows that it is "stolen currency", thus meeting the subjective elements of the crime of aiding and abetting trust?
From the perspective of the crime of aiding and trusting and its related judicial interpretations, it is necessary to return to the essence of the issue - whether the cash transaction of virtual currency obviously violates the laws of the market and is an "obviously abnormal" transaction method.
If cash transactions are obviously more difficult than online transactions in virtual currency transactions, for example, if the parties to the transaction are different places and are far away, it is an obviously abnormal transaction method, and if cash transactions are not significantly more difficult than online transactions, such as the parties to the transaction are relatives and friends in the same city, it is not an obviously abnormal transaction method.
Of course, a comprehensive determination should also be made based on the specific circumstances of the case.
Body:
OneIs the virtual currency cash transaction an obviously abnormal transaction method?
In the course of the transaction between the acquirer and the criminal, the "stolen currency" is converted into cash, and the acquirer provides payment and settlement assistance to the criminal. Article 287-2 of the Criminal Law stipulates that providing payment and settlement assistance to others while knowing that they are using information networks to commit crimes, and the circumstances are serious, constitutes the crime of aiding information network criminal activities, that is, the crime of aiding trust. Therefore, the defense of virtual currency accused of aiding and abetting trust focuses on whether the perpetrator "knowingly" purchased the virtual currency is "stolen currency".
Article 11 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Illegal Use of Information Networks and Aiding Criminal Activities on Information Networks (hereinafter referred to as the "Interpretation") provides for six specific circumstances in which "knowledge" is presumed. Item (3) is "the transaction ** or the manner is obviously abnormal." Therefore, in the absence of obvious abnormalities in the transaction, whether the purchase of coins by cash transaction can be presumed as subjective knowledge, the key lies in whether the virtual currency cash transaction is an obviously abnormal transaction method.
The trading of virtual currencies is divided into on-site trading and off-site trading, with on-site trading being exchange-based trading, off-site trading such as online payment transactions after negotiation using chat tools such as WeChat, and face-to-face cash transactions discussed in this article.
Compared with on-site transactions and online transactions, face-to-face cash transactions are more troublesome, for example, the two parties to the transaction are in different places or large quantities of virtual currency transactions require a large amount of cash. But it also has certain advantages, in China, from the essence of the point of view, virtual currency is characterized as a virtual commodity, can not be because of the virtuality of virtual currency on the negation of its commodity transaction attributes, in small commodity transactions, cash transactions are common and relatively safe transaction methods, you can pay money with one hand and deliver with one hand, and there is no obvious abnormality in the way of cash transactions.
In practice, some case-handling authorities will hold that the perpetrator's use of a more "troublesome" face-to-face cash transaction to buy and sell virtual currency is a situation where "the transaction method is obviously abnormal" in the Interpretation, and therefore it is presumed that the actor knew that it was "stolen currency".
However, the Supreme People's Procuratorate's explanation for "obviously abnormal trading methods" is that the trading methods are clearly not in line with market rules.
Therefore, the transaction method cannot be determined to be obviously abnormal simply based on the conversion of virtual currency and cash, and it should be returned to its essence whether such conversion does not conform to market rules, such as efficiency, convenience and security. For example, if the two parties to the transaction are in a different place, the cost of face-to-face transactions is large, or the transaction volume of virtual currency is large, and the cash carried is tens of millions, but the two parties still use the method of cash transactions, which does not conform to the rules of market transactions, and it can be presumed that the actor knows that it is stolen currency. However, for example, if the two parties to the transaction are relatives and friends in the same city, and the transaction amount is tens of thousands of yuan, the face-to-face cash transaction does not create resistance to the transaction itself, or such resistance is minimal, and it cannot be determined that the transaction violates the laws of the market, nor can it be presumed that there is knowledge.
IIJudging from the actual case, virtual currency cash transactions do not necessarily point to the perpetrator's knowledge
Case No.] Zhu Jian 1st Criminal Non-Prosecution No. 2020 No. 42.
Basic Facts of the Case] Criminal suspect A pre-helped others to realize the stolen money from online fraud through virtual currency, and A asked the non-prosecuted person B to register a Huobi exchange account with B's personal identity information and bind a personal bank card to provide it to A, and then C transferred it to the fraud gang for use. In 2019, Huobi account B sold more than 920,000 USDT coins, and bank account B received more than 630 yuan, and B handed over the cash withdrawn to C for safekeeping. c. Give the cash withdrawn to the fraud gang in Wuhan or Shenzhen. Among them, C arranged for Yao Moumou and B to take a high-speed train from Wuhan to Shenzhen to transport about 2 million yuan in cash to the fraud gang.
Case Result] It was determined that the facts of B's alleged crime were unclear and the evidence was insufficient, and the conditions for prosecution were not met. In accordance with the provisions of paragraph 4 of article 175 of the Criminal Procedure Law of the People's Republic of China, it was decided not to prosecute B.
Reason] The evidence in this case can be confirmed: In the first half of 2019, the non-prosecuted person B was arranged by A to provide his identity information to register a Huobi account, bind a bank card for A to use, and was arranged by A to transport cash to Liu's team. However, the evidence in this case cannot prove that B clearly knew that Liu Moumou and others were carrying out cybercriminal activities, nor can it prove that the funds received and transferred by B in the bank account provided by B were the proceeds of cybercrime. Here's why:
1.At present, the latest transaction in the account involved in the case of B is before the first deposit of the four fraud platforms involved in the case, and it cannot be proved that the money in the account involved in the case is the criminal proceeds of the four fraud platforms involved in the case
2.b. Do not know the members of the fraud gang and have no direct or indirect contacts;When A. arranges for B to register a Huobi account with personal identity information and bind a personal bank card, it does not explicitly or implicitly use itA arranged for Yao XX and B to withdraw a huge amount of cash, because when A was sent from Wuhan to Shenzhen, because A and others were doing business, the purpose and purpose of the cash withdrawal were not unique and exclusive, and it could not be proved that B had obtained benefits from them.
Interpretation] Although there is no transaction between virtual currency and cash in this case, there is a situation where virtual currency is realized into advanced and transported, and from the perspective of the procuratorate's reasons for not prosecuting, it cannot be determined that the helper is subjectively aware of it by simply converting virtual currency to cash, because the purpose and purpose of cash are not unique and exclusive, and do not directly point to illegal and criminal activities. Similarly, in a case where the crime of aiding and abetting trust is charged with virtual currency transactions, the subjective knowledge of the helper cannot be determined solely on the basis of the conversion of virtual currency to cash.
IIIThe judgment of the perpetrator's "knowing" in the crime of aiding and abetting trust should also be comprehensively considered
In ".Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Illegal Use of Information Networks and Aiding Criminal Activities on Information Networksunderstanding and application", the Supreme People's Court pointed out that ".After research, it is found that the determination of subjective knowledge of the crime of aiding information network criminal activities shall be comprehensively judged in light of the cognitive level of ordinary people and the cognitive ability of the perpetrator, whether the relevant conduct violates the prohibitions of the law, whether the perpetrator performed management duties, whether he evaded supervision or evaded investigation, whether he was punished for similar conduct, and the perpetrator's confession and justification. ”
The judicial interpretation creates a comprehensive determination rule, which requires full attention to various subjective and objective factors, not biased belief in the probative power of a certain piece of evidence, and a determination of whether or not "knowingly" is made from the perspective of holism. In the virtual currency transactions mentioned in this article, in addition to the form of cash transactions, it should also be comprehensively determined whether the perpetrator "knows" based on the facts of the case, such as whether the transaction is abnormal, whether encrypted communication is used, whether it has received a prompt from the regulatory authority, and whether the card has been frozen.
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