Lawyer's point of view: on the moral hazard and legal dilemma of judicial disposal of cryptocurrency

Lawyer Ding Feipeng 2021-11-23 06:50:43 阅读数:189

lawyer point view moral hazard

author | Lawyer Ding Feipeng

From a policy perspective , The central bank and other financial institutions have not recognized the virtual currency “ The nature of money ”, It is characterized as “ A specific virtual commodity ” and “ Private financial assets .

stay 2021 year 9 month 24 recently , Partial court ( Including the national excellent judgment ) Think The currency And other virtual currencies have value 、 Scarcity and disposable , It belongs to network virtual property , Be protected by law , And then protect the disputes and legal rights of ordinary users arising from the disposal of virtual currency . But some courts hold that , Virtual currency violates 《 Notice on further strengthening prevention of bitcoin risk 》 The provisions of the , Furthermore, disputes arising from the disposal of virtual currency by ordinary users are not protected , Users are required to bear all risks .

stay 2021 year 9 month 24 Japan 《 Notice on further preventing and dealing with the risk of speculation in virtual currency transactions 》 and 《 On the regulation of virtual currency “ dig ” Notice of the event 》 After release and Implementation , Some people think that , Everything about virtual currency is illegal , Virtual currency transactions are more illegal financial activities . Some people think that , The holding of virtual currency is not illegal , But the exchange of virtual currency and legal currency ( namely “ Virtual currency transactions ”) It's illegal. , Exchange between virtual currency and virtual currency ( namely “ Coin currency trading “”) It's illegal. . Some people think that , The qualitative analysis of virtual currency by financial institutions such as the central bank (“ Specific virtual goods ” and “ Private financial assets ”) There is no change , Therefore, the holding of virtual currency is not illegal ; Since ordinary people's possession of virtual currency is not illegal , Then free trading at your own risk is not illegal , But provide a match for such transactions 、 pricing 、 Information intermediary services or large-scale “ Coin merchant ” High frequency or large volume transactions are illegal .

Whereas , In judicial practice, there are great disputes about the attribute of virtual currency and the legitimacy of transaction , So that some problems appear , such as :

1、 Some ordinary users buy through their own legal income 、“ dig ” Or receive gifts to obtain virtual currency , Whether it can continue to hold ? Whether it is illegal to continue to hold ?

2、 If the legally obtained virtual currency is to be sold to others 、 Give to or with others “ To barter ”, Is it against the law ?

3、 Virtual currency seized by judicial organs in cases involving virtual currency , Is it a legally recognized asset , Can we continue to sell ? If you can't continue to sell , So how to make up for the losses of the victims of the case ?

as everyone knows , Become a civil law “ matter ”, There is no need for special provisions of laws and regulations , There is no need for laws and regulations to give a legally protected “ list ”, As long as an item has value 、 Scarcity and dominance , Meet the requirements of the object of right , It belongs to civil law “ matter ”, Should be equally protected by law . namely , Become “ matter ”( assets 、 goods ) There is no need for special provisions or authorization by law , As long as you have the above characteristics . As for whether such assets or commodities can circulate in the market , It depends on whether it is prohibited or restricted by law .

We believe that China's characterization of virtual currency has not changed , Still “ Specific virtual goods ” and “ Private financial assets ”.《 Notice on further preventing and dealing with the risk of speculation in virtual currency transactions 》 Mainly to limit the speculation of virtual currency trading , Prevent disturbing the economic and financial order , Prevent gambling 、 Illegal fund raising 、 fraud 、 Pyramid selling 、 Money laundering and other illegal and criminal activities , But it does not deny that the central bank and other financial institutions used virtual currency as “ Specific virtual goods ” and “ Private financial assets ” The nature of . So as “ Specific virtual goods ” and “ Private financial assets ”, The possession of ordinary people must not be illegal .

Since holding virtual currency is not illegal , Virtual currency is not listed as “ Contraband list ”“ List of prohibited goods ” or “ Restricted circulation list ” Under the circumstances , It is not appropriate to dispose of all virtual currencies ( Use 、 Proceeds and disposals ) Are recognized as “ Illegal financial activities ”, The main reasons are as follows :

1、 Legal basis

If one “ matter ”( assets / goods ) It is not illegal to hold , And this asset is not listed as “ Contraband list ”“ List of prohibited goods ” or “ Restricted circulation list ”, according to “ There is no prohibition of law ” Principles , What about the disposal of this asset by ordinary citizens ( Use 、 Proceeds and disposals ) It's not illegal .

2、 The reality needs

There are many cases where the assets uncovered contain virtual currency , Even in the missing assets , Virtual currency is the mainstream , If understood as “ All virtual currency disposal ( Use 、 Proceeds and disposals ) Are recognized as ’ Illegal financial activities ’”, Then the virtual currency found should be destroyed , Then the losses of the victims of the case , It is more difficult to recover or make up for .

3、 International Perspective

From a global perspective , Some countries have issued virtual currencies ETF, Some countries 、 Financial institutions 、 Multinational enterprises or well-known entrepreneurs buy virtual currencies or use them as asset reserves , There are also some central banks in some countries .

This year, the United States issued its first bitcoin futures The ProShares Bitcoin Strategy ETF( Code BITO), Trading on the first day of listing was very hot , The turnover is the second highest in history , Change hands 2400 Thousands of stocks , turnover 10.08 Billion dollars , It is the second highest trading volume on record ETF, Second only to BlackRock's previously launched carbon neutralization fund .

4、 The feasibility of

It is also illegal to hold virtual currency , Management ( Use 、 Proceeds and disposals ) More illegal , So how to monitor and enforce the law is particularly important . We all know , The generation and operation of virtual currency rely on blockchain technology , Blockchain technology is decentralized 、 open 、 independence 、 Security 、 Anonymity, etc , This also means that the difficulty and cost of monitoring the holding and disposal of virtual currency will be relatively high . If the policy cannot be well implemented or implemented equally after formulation , It will in turn undermine the authority of policy .

In the course of handling the case, we found , Some people insist on double standards on the nature of virtual currency and the legitimacy of transactions , They believe that it is completely reasonable and legal for the judiciary to deal with virtual currency , But ordinary people cannot hold , And you can't trade , Otherwise, it is illegal financial activities .

We think ,“ Double standards ” Undesirable , In addition to legal risks , Also high moral hazard , For the following reasons :

1、 The essence of judicial disposal of virtual currency

After the judicial organ finds out the virtual currency, it will be realized , Whether it's sold directly by the judiciary , Or entrust a third party to consignment , Or acquiesce in a suspect's appointment to sell third persons. , In essence , Is a kind of virtual currency trading behavior , Or acquiescence in virtual currency trading .

From the cases we handled , The judiciary is generally unwilling to directly become a party to the virtual currency transaction , Maybe I'm worried about the funds received during the sale , Easy to get into trouble , Perhaps it is worried that the sale of virtual currency is defined as illegal financial activities , All in all , Direct sale by the judiciary is extremely rare .

by comparison , It would be much better to entrust third-party consignment . When the trustee undertakes the disposal , There will also be concerns , Therefore, the trustee generally wants the disposer to issue an authorization or document , So that when the trustee has problems in the realization process , can “ Make it clear ”. But from the cases we handled , It is rare for the disposal party to issue entrustment documents or contracts , More often, it is based on the oral agreement of both parties , Coordination of suspect by disposition party , A letter of attorney issued by a suspect to a trustee. , A trustee accepts the Commission of a suspect directly for cash. , Omit or dilute the relationship between the disposer and the trustee .

Whether entrusted to a third party for consignment , Or acquiesce in the suspect's commission to sell third people. , This involves the sale of the trustee . That is, when the consignor sells the consignment or acquiescence the suspect to sell the agent on behalf of the third party. , Know or should know the virtual currency trading behavior between the latter trustee and the actual buyer , The actual buyer will not throw away the virtual currency after buying , Probably still continue trading to make profits , Objectively “ encourage ” or “ laissez-faire ” The virtual currency hype .

2、 For public power ,“ The law forbids... Without authorization ”

For private rights ,“ There is no prohibition of law ”; For public power ,“ The law forbids... Without authorization ”. therefore , Of public power “ Can be a range ” Is far less than private rights “ Can be a range ” Of , Unless otherwise specified by law .

Sell , Will buy , These are two sides of a coin , Look at it this way , It is unlikely to introduce a law that allows an agency to trade virtual currency .

3、 Moral hazard

If the policy is understood as the virtual currency disposal of ordinary people “ Illegal financial activities ”, So how to understand the judicial disposal of virtual currency ? Whether the disposer sells it on its own , Or entrust a third party to consignment , Or acquiescence in the suspect's commission to sell the third party. , All objectively “ encourage ” or “ laissez-faire ” The virtual currency hype .

meanwhile , No matter which method the disposer adopts to dispose of the virtual currency , Regardless of whether the disposer will trade virtual currency or “ encourage ” laissez-faire ” The responsibility and risk of virtual currency speculation have been transferred , Put the trustee at risk of breaking the law , It also has certain moral hazard .

in summary , Represented by virtual currency “ Decentralized Finance ” The challenge to traditional finance has just begun , As the first successful application of blockchain technology , Virtual currency is not a beast , There are still rules to follow , In the end, it is a stick that kills the ground, and the treatment effect is good , It is better to control flood and block up than to dredge land , I'm afraid we can only leave it to time to verify ………


attach : Prepared by the thawing team of Beijing Liantong law firm 《 Overview of China's main policies related to virtual currency 》

2011 year 11 month 24 Japan , Issued by the state council 《 Decision of the State Council on cleaning up and rectifying various trading places and earnestly preventing financial risks 》, For refusing to rectify 、 Failing to complete the rectification within the time limit without justified reasons , Or continue to engage in illegal securities 、 A trading place for futures trading , All provincial people's governments shall resolutely close down or ban them according to law and regulations . In the process of cleaning up , All provincial people's governments shall take effective measures to ensure the safety of investors' funds and social stability ; For those suspected of crimes , To be transferred to the judiciary , Investigate the legal responsibilities of relevant personnel according to law .

2013 year 12 month 5 Japan , People's Bank of China 、 Ministry of industry and information technology 、 China Banking Regulatory Commission 、 China Securities Regulatory Commission 、 Issued by China Insurance Regulatory Commission 《 Notice on prevention of bitcoin risk 》, It is clear that bitcoin is a specific virtual commodity in nature , It's not a real currency , Financial institutions are required to 、 Payment agencies and provide bitcoin registration 、 If suspicious transactions related to bitcoin and other virtual commodities are found on the Internet websites of transactions and other services , Report to China Anti Money Laundering Monitoring and Analysis Center immediately , And cooperate with the anti money laundering investigation of the people's Bank of China , For the discovery of fraud using bitcoin 、 gambling 、 Clues of money laundering and other criminal activities , Report the case to the public security organ in time . And then , Officially issued by the people's Bank of China 《 Bitcoin related issues to answer reporters' questions 》, Make it clear that bitcoin trading is a commodity trading behavior on the Internet , Ordinary people have the freedom to participate at their own risk .

2014 year 3 month , People's Bank of China 《 Notice on further strengthening prevention of bitcoin risk 》, Bitcoin trading is strictly prohibited , And impose the penalty of permanent freezing on the special currency account .

2017 year 1 month , Shanghai headquarters of the people's Bank of China 、 Shanghai finance office and other units formed a joint inspection team to conduct on-site inspection on bitcoin China , Focus on checking whether the enterprise operates beyond its scope , Whether to carry out credit without permission or license 、 payment 、 Exchange and other related businesses ; Is there any market manipulation ; Implementation of anti money laundering system ; Hidden dangers of capital security, etc . On the same day , The business management department of the people's Bank of China and the Beijing Municipal Bureau of Finance and other units form a joint inspection team , Garrison “ Fire coin net ”“ Coin row ” Equal bitcoin 、 Wright coin trading platform , Implement foreign exchange management on the trading platform 、 Anti money laundering and other relevant financial laws and regulations 、 Conduct on-site inspection on relevant regulations on trading place management .

2017 year 9 month 4 Japan , People's Bank of China 、 Central network information office 、 Ministry of industry and information technology, SAIC 、 CBRC 、 The securities and futures commission 、 Issued by CIRC 《 Notice on preventing the financing risk of token issuance 》, It is required that no organization or individual shall illegally engage in token issuance and financing activities , The token financing trading platform shall not engage in legal tender and tokens 、“ Virtual currency ” Exchange business with each other ( Do not buy or sell tokens or “ Virtual currency ”, Not for tokens or “ Virtual currency ” Provide pricing 、 Information intermediary and other services ).

2018 year 1 month 12 Japan , Issued by China Internet Finance Association 《 Prevent disguise ICO Risk tips for the event 》, Point out that token issuance financing (ICO) Suspected of illegal fund-raising 、 Illegal and criminal activities such as illegal issuance of securities and illegal sale of token tickets , Any organization or individual shall immediately stop engaging in ICO. about IMO The mode and various services continue to be opened to domestic residents through the deployment of overseas servers ICO And “ Virtual currency ” Trading place service , Found to be involved in illegal financial activities , It can be reported to relevant regulatory authorities or China Internet Finance Association , For those suspected of breaking the law and committing crimes , Report the case to the public security organ .

2018 year 1 month 26 Japan , Issued by China Internet Finance Association 《 On the prevention of overseas ICO And “ Virtual currency ” Tips on transaction risk 》, Some institutions or individuals in China are still organizing so-called currency trading and OTC trading , With market makers 、 Guarantor and other services , This actually belongs to “ Virtual currency ” Trading place , Obviously inconsistent with current policies and regulations . Some domestic social platforms are still “ Virtual currency ” Centralized trading provides various conveniences , Some non bank payment institutions are “ Virtual currency ” Transactions provide payment services , These are “ Virtual currency ” All transactions and services are exposed to policy risks .

2018 year 8 month 24 Japan , Silver circ 、 Central network information office 、 The Ministry of Public Security 、 The People's Bank of China 、 Issued by the General Administration of market supervision 《 About prevention “ Virtual currency ”“ Blockchain ” The risk of illegal fund-raising in name 》, Lawless elements hit “ financial innovation ”“ Blockchain ” Banner , By issuing so-called “ Virtual currency ”“ Virtual assets ”“ Digital assets ” And so on 、 Hype blockchain concept , Also with ICO、IFO、IEO And other fancy items to issue tokens , Or under the banner of sharing economy IMO Virtual currency speculation , With illegal fund-raising 、 Pyramid selling 、 Characteristics of illegal acts such as fraud .

Issued by the people's Bank of China 《 China Financial Stability Report 2018》“ The second part is the robustness evaluation of the financial industry ” in “ Topic 12 risks and prevention in fields related to encrypted assets ” Make it clear , Crypto asset is a kind of private financial asset , Its value is mainly based on cryptography and distributed accounting technology .

2019 year 1 month 10 Japan , Issued by the state Internet information office 《 Block chain information service management requirements 》, Six requirements are put forward for service providers to implement the responsibility of blockchain information service security subject : First, implement the responsibility of information content security management ; Second, it has the technical conditions suitable for its services ; Third, formulate and publicize management rules and platform conventions ; Fourth, implement the real identity information authentication system ; Fifth, it is not allowed to use blockchain information services to engage in legal activities 、 Activities or production prohibited by administrative regulations 、 Copy 、 Release 、 Spread the law 、 Information content prohibited by administrative regulations ; The sixth is to punish those who violate the law 、 Blockchain information service users of administrative regulations and service agreements , Disposal measures shall be taken according to law and contract .

2019 year 11 month 8 Japan , Issued by Dongguan Finance Bureau 《 About prevention “ Virtual currency ”“ Blockchain ” Wait for the name Risk tips for illegal fund-raising 》, Through the illegal sale of tokens 、 circulation , Raise bitcoin from investors 、 Ether money And so on “ Virtual currency ”, In essence, it is an unauthorized illegal public financing , Suspected of illegally selling token tickets 、 Illegal issuance of securities and illegal fund raising 、 Financial fraud 、 Pyramid selling and other illegal and criminal activities . Clues to illegal fund-raising and crimes , Actively report and reflect , Once the clue is proved to be valid, it shall be adopted , You can get a reward for reporting .

2019 year 11 month 13 Japan , Beijing local financial supervision and Administration Bureau 《 Risk tips on unauthorized business activities of trading place branches 》, The establishment of a trading place branch shall be subject to the approval of the provincial people's Government where the trading place is located and the provincial people's Government where the proposed branch is located , At present, Beijing has not approved any trading places to set up branches , If there is a foreign trading place ( Focus on financial asset exchange ) The business activities of branches in Beijing are illegal .

2019 year 11 month 18 Japan , Zou Shibin, deputy inspector of Beijing local financial supervision and Administration Bureau, attended the meeting “2019 Beijing International Financial Security Forum ” And give a speech , We will continue to strengthen the control of illegal fund-raising 、ICO And other illegal activities .

2019 year 11 month 21 Japan , Shenzhen mutual fund regulation office 《 Shenzhen will carry out investigation and rectification of virtual currency trading places 》, Focus on three activities : First, provide virtual currency trading services or set up virtual currency trading venues in China ; Second, provide service channels for overseas virtual currency trading places , Including drainage 、 Services such as agency sales ; The third is to sell tokens under various names , Raise money from investors or bitcoin 、 Virtual currencies such as ether . Inform the district rectification Office 、 Qianhai administration 、 Shenzhen central sub branch of the people's Bank of China 、 Economic Investigation Bureau of Municipal Public Security Bureau 、 The Municipal Communications Administration and other units jointly carried out the investigation and rectification of virtual currency trading places 11 month 25 I have finished the touch and arrange work a few days ago , And submit the list and information of enterprises engaged in virtual currency related activities within their jurisdiction to the municipal mutual fund regulation office . For the above enterprises found in the investigation , Dispose of immediately , Fight early, fight small .

2019 year 11 month 22 Japan ,《 Beijing is cracking down on virtual currency trading , Continue to maintain the high pressure situation of supervision 》, In order to prevent the resurgence of illegal financial activities in virtual currency transactions , According to the work deployment of the office of the national leading group for special rectification of Internet financial risks , Beijing Municipal Bureau of local financial supervision 、 The business management department of the people's Bank of China insists on the above illegal financial activities “ Just show up and fight ” principle , Continue to maintain the high pressure situation of supervision , Jointly with China Internet Finance Association 、 The national Internet Emergency Center comprehensively arranges virtual currency trading places and other organizations within its jurisdiction , Once found , Will be in accordance with the 《 Notice on preventing the financing risk of token issuance 》 And other relevant regulations .

2019 year 11 month 22 Japan , Shanghai headquarters of the people's Bank of China 《 Strengthen supervision and control Fight against virtual currency trading 》, Hype related to virtual currency ( Such as ICO、IFO、IEO、IMO and STO etc. ) retrofit 、 Speculation is rife , Prices skyrocketed and plummeted , Rapid risk aggregation . According to the general requirements of the national special rectification of Internet financial risks , Shanghai Joint Conference Office of financial stability 、 Shanghai headquarters of the people's Bank of China, together with the relevant departments at the two levels in Shanghai , Carry out special rectification on activities related to virtual currency in Shanghai , Order to provide publicity for the virtual currency trading platform registered abroad found in the touch and row 、 Enterprises with problems in drainage and other services shall rectify and exit immediately . next step , Continuously monitor the virtual currency business activities within the jurisdiction , Dispose of as soon as it is found , Fight early, fight small , Nip in the bud . Investors such as the discovery of various forms of virtual currency business activities , And through the deployment of overseas servers to continue to develop for domestic residents ICO And virtual currency trading business organizations or individuals , Report... To the regulatory authorities , For those suspected of breaking the law and committing crimes , Report the case to the public security organ .

2019 year 12 month 3 Japan , Risk tips of Hubei anti illegal work office “ Be vigilant against illegal fund-raising against blockchain hotspots ”, Will be based on “ Fight early, fight small ” idea , Make full use of network monitoring 、 Big data screening 、 A variety of means, such as offline layout , Step up to “ Stir frying coins ”“ Fried chain ” And so on illegal fund-raising risk monitoring and early warning strength , Strengthen risk investigation , Once it is found that illegal fund-raising is involved, it shall be dealt with promptly and decisively . It is hoped that the masses will find relevant clues and actively report to local anti illegal offices , Those who meet the conditions will be rewarded in accordance with relevant policies .

2021 year 5 month 18 Japan , Chinese Finance Association of Internet 、 Issued by China Banking Association and China payment and clearing Association 《 Notice on preventing the risk of speculation in virtual currency transactions 》, Reiterate that virtual currency is a specific virtual commodity , Should not and cannot be used as currency in the market ; Carry out legal currency and virtual currency exchange and virtual currency exchange business 、 Buying and selling virtual currencies as central counterparties 、 Provide information intermediary and pricing services for virtual currency transactions 、 Token issuance and financing, virtual currency derivatives trading and other related trading activities , Violation of relevant laws and regulations , And suspected of illegal fund-raising 、 Illegal issuance of securities 、 Criminal activities such as illegal sale of token tickets .

2021 year 6 month 2 Japan , Xinhua News Agency officially released 《 Why does Xinhua keep an eye on “ Currency circle ” Those things ?| The story behind the news 》: Regulation of speculation in virtual currency transactions , It's not a single sector, single regulation , It's a comprehensive strategy . Relevant departments should participate according to their respective responsibilities , Implement functional regulation . If only bitcoin and other virtual currencies are sold as virtual Commodities , Ordinary people at their own risk , Have the freedom to trade . But if you package virtual money as “ gain ten thousand percent ” The target of speculation , Attract investors to the trading platform , We must tighten the fence of the system 、 Safeguard the interests of the people .

2021 year 9 month 24 Japan , The central bank 、 Internet Information Office 、 Supreme people's court 、 The Supreme People's Procuratorate 、 Ministry of industry and information technology 、 The Ministry of Public Security 、 General Administration of market supervision 、 Silver circ 、 The CSRC and the safe jointly issued 《 Notice on further preventing and dealing with the risk of speculation in virtual currency transactions 》, Stipulate that virtual currency is not legal tender , Should not and cannot be used as currency in the market , However, it did not reiterate the virtual commodity nature of virtual currency . The notice made it clear that the business activities related to virtual currency belong to illegal financial activities ( Including the exchange of legal currency and virtual currency 、 Exchange business between virtual currencies 、 Buying and selling virtual currencies as central counterparties 、 Provide information intermediary and pricing services for virtual currency transactions 、 Business activities related to virtual currency such as token issuance and financing and virtual currency derivatives trading ). Any legal person 、 Unincorporated organizations and natural persons invest in virtual currencies and related derivatives , Against public order and good customs , Relevant civil legal acts are invalid , The resulting losses shall be borne by itself ; Suspected of undermining financial order 、 Endangering financial security , It shall be investigated and dealt with by relevant departments according to law .

2021 year 9 month 24 Japan , National development and reform commission 、 Publicity department of the CPC central committee 、 Central network information office 、 Ministry of industry and information technology 、 The Ministry of Public Security 、 The Ministry of Finance and the people's Bank of China 、 Total bureau of wu of tax of 、 General Administration of market supervision 、 Jointly issued by the CBRC and the National Energy Administration 《 On the regulation of virtual currency “ dig ” Notice of the event 》, Clear virtual currency “ dig ” The energy consumption and carbon emission of activities are large , Low contribution to the national economy , For industrial development 、 The driving effect of scientific and technological progress is limited , In addition, virtual currency production 、 The risks derived from trading are becoming more and more prominent , Its blind and disorderly development has an adverse impact on promoting high-quality economic and social development and energy conservation and emission reduction , Remediation of virtual currency “ dig ” The activity is of great significance to promote the optimization of China's industrial structure 、 Promote energy conservation and emission reduction 、 Achieve carbon peak on schedule 、 The goal of carbon neutralization is of great significance . Put the virtual currency “ dig ” Activities are classified as eliminated industries . Investment and construction of new mining projects are strictly prohibited , Accelerate the orderly withdrawal of existing mining projects .

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