Analysis (Part I): the secret of virtual currency OTC trading and "helping trust crime" and "concealment crime"

Lawyer Liu Lei of Shanghai 2022-04-06 13:22:00 阅读数:365

analysis secret virtual currency otc

Abstract :

Virtual currency OTC transaction ( hereinafter referred to as “OTC transaction ”) In the process , Why is it easy to receive stolen money ? Once you receive the stolen money , What adverse consequences will there be ? If you often receive stolen money , Will it be recognized by the judiciary as “ Crime of helping faith ” or “ Crime of concealment ”. If it is found to constitute a crime , In judicial practice , How to treat “ Crime of helping faith ” or “ Crime of concealment ” Distinguish between the two ? Based on the experience of our team in handling relevant cases , Combined with the criminal cases involving virtual currency trading in China , The latest judicial practice views are summarized as follows .

Catalog

One 、 Why? OTC Trading is easy to receive stolen money ?

Two 、OTC What are the adverse consequences of the transaction after receiving the stolen money ?

3、 ... and 、OTC Why is it easy for businesses to become “ Crime of helping faith ” And “ Crime of concealment ” The target of the attack ?

Four 、“ Crime of concealment ” and “ Crime of helping faith ” stay OTC How to distinguish... In the transaction ?

5、 ... and 、 According to the case , Court for OTC The transaction involves “ Crime of concealment ” And “ Crime of helping faith ” The identification of ?

This sharing will be divided into two parts : This article shares , Why? OTC Trading is easy to receive stolen money ?、OTC What are the adverse consequences of the transaction after receiving the stolen money ?、OTC Why is it easy for businesses to become “ Crime of helping faith ” And “ Crime of concealment ” The target of the attack ?、“ Crime of concealment ” and “ Crime of helping faith ” stay OTC How to distinguish... In the transaction ?; The rest of the content will continue to be shared , According to the case , Court for OTC The transaction involves “ Crime of concealment ” And “ Crime of helping faith ” The identification of ?

One 、 Why? OTC Trading is easy to receive stolen money ?

OTC Trading makes a difference , Why is there a risk of receiving stolen money ? Let's make an analogy , Suppose you are a fruit merchant , Wholesale chelizi from Chile 20/ Jin , Deduct the cost to sell in China 30/ If you're a catty , Can earn 10 element / Jin , Why don't fruit dealers easily receive stolen money , Even if the fruit merchant receives the stolen money , There is no risk of criminal offences .OTC The reason why the transaction is easy to receive stolen money is :

1.OTC The transaction objectively has the inflow of stolen money . Criminals swindle through telecommunications 、 After setting up casinos and other criminal acts to seek illegal income , With stolen money OTC transaction , Lead to OTC There is a large inflow of stolen money in the transaction .

2.OTC transaction , Businesses themselves lack the awareness of risk prevention and the ability to identify whether the funds are legal . Most businesses , It's all heard OTC Trading can make money , Then through network media such as group chat , Trading with unspecified people to earn the difference , Merchants trade according to normal price fluctuations , Trade according to the traditional way of buying and selling , One side , The legality of the funds was not examined , Easy to receive stolen money , On the other hand , Used by criminals , As a result, a large amount of stolen money flows into OTC In the transaction .

3. Criminals as traders , utilize OTC The mode of trading , Trade with stolen money , To achieve the purpose of money laundering . First ,OTC The more transactions , The more profits you earn , therefore OTC Inevitably, transactions are high-frequency transactions , The flow of funds has greatly increased , There are more and more counterparties , Uncertainty and risk also increase . secondly ,OTC In the transaction , By calculation , If USDT The price difference is a penny , Every USDT With 7 In RMB , The profit from virtual currency trading is about 0.1428%, It means 1000 Ten thousand flowing water , The return on one round of trading is about 1.5 Thousands of yuan , therefore ,OTC The transaction amount is often tens of millions , Less is tens of thousands , In other words , For criminals , Just like OTC In the trading mode , There is a lot of flow in buying and selling virtual currencies , Money can be easily transferred in several hands , also 1000 Ten thousand flowing water , Money launderers bid ask spread 1 For money USDT, Cost control in 1.5 Ten thousand yuan , The cost of money laundering is not as high as the traditional model , Money laundering is faster than the traditional model . This is also the criminal who uses the illegal proceeds for OTC The purpose of the transaction .

4. The trading platform cannot distinguish whether the funds are legal at the source , So as to block the inflow of stolen money . Mainstream trading platforms cannot fully identify whether the funds are legal , Illegal funds on small trading platforms are more active , also KYC Unable to fully identify whether the other party's funds are legal . Due to high-frequency and large transactions USDT, The money launderer will even forge a bank statement that looks legal months in advance , thus ,OTC It is difficult to distinguish whether the source of funds is legal .

5. Virtual currency itself has strong concealment 、 Liquidity 、 Hard to track 、 Hard to freeze and other attributes . add USDT There is no physical carrier like cherizi , China does not recognize the legal currency attribute of virtual currency , Just use it as a virtual commodity , Its essence is more a kind of hype about virtual goods , No physical object is needed as a carrier . The attributes of these virtual currencies are often used by some criminals .

 Virtual currency OTC Trade with “ Crime of helping faith ” and “ Crime of concealment ” A secret I have to say ( One )

chart 1: source pexels

Two 、OTC What are the adverse consequences of the transaction after receiving the stolen money ?

stay OTC In the transaction , Received a transfer from a stranger , These transfers may be made by criminals through fraud 、 Illegal proceeds from criminal acts such as opening casinos , Money laundering through buying and selling virtual currencies . that OTC What adverse consequences will the merchant have when receiving this stolen money ?

1. The risk of bank accounts being frozen . Objectively speaking, the stolen money is the illegal income of the criminals , according to 《 Regulations on the procedure of handling criminal cases by public security organs 》, The public security organ has the right to control the inflow of stolen money OTC The merchant's bank account is frozen . In practice, in order to trace the stolen money , It is very likely to freeze all the accounts where the stolen money flows , because OTC As the payee, the merchant will be frozen by the public security organ . The first freeze is for six months , The public security organ may go through the formalities of continuing the freezing before the expiration of the freezing period . so OTC The freezing period of merchant bank cards is far away .

2. The risk of the stolen money being deducted or returned . To protect the victims , The public security law can freeze the funds of bank cards , Priority return to victims . After the public security organ determines that there is no dispute over your capital ownership , Can be directly based on 《 Opinions on the application of law to criminal cases such as telecommunication network fraud ( Two )》 The seventh paragraph Second The amount in the bank account involved or the payment account of the third party involved , The legal property of the victim with clear ownership , It should be returned in time . Direct deduction .

3. Face criminal risk .OTC In the transaction, the merchant knows that the transaction funds are illegal gains or other presumed circumstances , It is not only the bank card that is frozen by the public security organ , The public security organ will determine that you subjectively want to help criminals launder money , At this time, the public security organ will OTC Businesses take subpoena 、 Detention and other coercive measures , Is the evidence collected according to the investigation sufficient , Transferred to the procuratorate for examination and prosecution , Court trial , It's not just bank cards that are frozen 、 Risk of deduction , Even face the risk of criminal crime .

 Virtual currency OTC Trade with “ Crime of helping faith ” and “ Crime of concealment ” A secret I have to say ( One )

chart 2: source pexels

3、 ... and 、OTC Why is it easy for businesses to become “ Crime of helping faith ” And “ Crime of concealment ” The target of the attack

according to 924 notice ,OTC Trading is regarded as an illegal financial activity , It refers to the virtual currency transactions conducted by individuals or enterprises for many times , Personal accidental virtual currency transactions are not regarded as an illegal financial activity . that “ many times ” How many times ?, At present, there is no relevant law to regulate it , however 《 Supreme people's court 、 The Supreme People's Procuratorate 、 The Ministry of Public Security 、 The Ministry of justice 《 Opinions on handling criminal cases of illegal lending 》 It is stipulated that the act of issuing usury constitutes the crime of illegal business operation 2 No specific person within the year 10 Time . So we can learn from ,OTC Is the number of transactions applicable 2 At least during the year 10 The regulations of this time ?

OTC After the transaction is regarded as an illegal financial activity ,OTC Businesses buy and sell virtual currency once they receive stolen money , The act of buying and selling virtual currency is easy to be characterized as a criminal act by the public security organ , , in turn, OTC Businessmen are classified as suspect by public security organs. . The procuratorate will, according to the evidence transferred by the public security organ , With “ Crime of helping faith ” or “ Crime of concealment ” To examine and prosecute . why OTC The behavior of merchants buying and selling virtual currency is characterized as a criminal act , So much so “ Crime of helping faith ” or “ Crime of concealment ” give criminal sanctions ?

“ Crime of helping faith ” The full name is the crime of helping information network criminal activities . yes 《 Amendment to the criminal law ( Nine )》 Added , be in 《 The criminal law 》 The first 287 strip :“ Knowing that others use information networks to commit crimes , Providing internet access to their crimes 、 Server hosting 、 Network storage 、 Communication transmission and other technical support , Or offer advertising 、 Payment settlement and other help , serious , To be sentenced to fixed-term imprisonment of not more than three years or criminal detention , Penalty concurrently or only .” stay OTC In the transaction , Once the buying and selling behavior of buying and selling virtual currency meets “ Crime of helping faith ” The practice of payment and settlement , Subjectively knowing that someone else committed a crime by using the information network , accord with “ Crime of helping faith ” The constituent elements of , Will become “ Crime of helping faith ” The target of the attack .

“ Crime of concealment ” The full name is cover up 、 Concealing the proceeds of crime 、 Crime of gains from crime . be in 《 The criminal law 》 The first 312 strip : Knowing that it is the proceeds of crime and the proceeds generated 、 Transfer 、 Acquisition 、 Sell on behalf of or cover up in other ways 、 Concealed , To be sentenced to not more than three years in prison 、 Detention or control , Penalty concurrently or only ; serious , To be sentenced to fixed-term imprisonment of not less than three years but not more than seven years , Impose a fine . stay OTC In the transaction , Once the buying and selling behavior of buying and selling virtual currency is qualitative “ Crime of concealment ” The act of transferring stolen money , Subjectively knowing that it is the proceeds of crime 、 Proceeds of crime , accord with “ Crime of concealment ” The constituent elements of , Will become “ Crime of concealment ” The target of the attack .

 Virtual currency OTC Trade with “ Crime of helping faith ” and “ Crime of concealment ” A secret I have to say ( One )

chart 3: source pexels

Four 、“ Crime of helping faith ” and “ Crime of concealment ” stay OTC How to distinguish... In the transaction ?

“ Crime of helping faith ” There is no objective degree of illegality “ Crime of concealment ” serious ,“ Crime of concealment ” Need to have “ Harboring 、 Transfer 、 Acquisition 、 Sell on behalf of or cover up in other ways 、 hide ” And other active violations , and “ Crime of helping faith ” The degree of objective illegality is significantly lower than “ Crime of concealment ”, Provide Internet support and other neutral behaviors , For example, provide Internet access 、 Server hosting 、 Network storage 、 Communication transmission and other technical support , Or offer advertising 、 Payment and settlement and other helping behaviors . And in the OTC In the transaction , Buying and selling virtual currency itself is a kind of buying and selling behavior ,“ Crime of concealment ” There are goods that second-hand merchants know are illegal gains , Purchased at normal price , It also has a certain degree of business neutrality . so ,OTC In the transaction , Whether it is business neutral , Not to distinguish “ Crime of helping faith ’ And ” Crime of concealment ’ Requirements of .

stay OTC How to distinguish between the two in the transaction , We need to return to the constitutive elements of the two crimes themselves ,“ Crime of helping faith ” and “ Crime of concealment ” There are two main distinctions , First of all , Buying and selling virtual currency is “ Crime of helping faith ” Your payment and settlement behavior is still “ Crime of concealment ” Transfer of funds ; second , The purpose of the act 、“ Knowing ” The degree of difference , Subjectively , Knowing that criminals use the Internet to commit crimes , Or knowing that the other party's funds are the proceeds of crime .

First of all , Just “ Act ” for , What is? “ Crime of helping faith ” Payment and settlement behavior in ? according to 《 Payment and settlement method ( Silver hair [1997]393 Number )》 Article 3 the : As mentioned in these measures “ Payment settlement ” Refers to the unit 、 Personal use of bills in social and economic activities 、 Credit cards and remittances 、 Collection commitment 、 The act of monetary payment and fund liquidation by means of entrusted collection and other settlement methods . As far as the object of payment and settlement behavior is concerned ,“ Crime of concealment ” The object can only be the proceeds of crime and its proceeds , and “ Crime of helping faith ” The objects of payment and settlement behavior in are more extensive , It can be other funds related to cybercrime , Such as paying for criminals, defrauding website operation and other expenses .

In judicial practice ,“ Crime of helping faith ” Payment and settlement behavior in , The general performance is to provide collection for criminals 、 Transfer accounts 、 transaction . Among them, selling bank cards and other personal behaviors are the most common , At present, virtual currency trading is also regarded as a way of payment and settlement . but ,“ Crime of helping faith ” The payment and settlement in did not break the source of funds , The nature of the funds has not changed , It only promotes the circulation of funds or provides other channels for the circulation of funds , In other words , Just let the funds flow from victim a to criminal b , The nature of funds is always A, At this time, further downstream transfer may be required .“ Crime of concealment ” Not only subjectively realize that the other party is illegal funds , Transfer is also required 、 Cash withdrawal and other acts , Change the nature of funds , It belongs to the nature of funds and is handled by A change B.

Specific to the OTC In the case of merchants buying and selling virtual currency , Buying and selling, whether out of money or in money , Have changed the nature of the original funds , Its behavior can be evaluated as a kind of behavior of transferring funds . so ,OTC The behavior of buying and selling virtual currency in trading belongs to “ Crime of concealment ” Transfer of funds , Secondly, the behavior can also be evaluated as “ Crime of helping faith ” Payment and settlement in , Payment and settlement is also a kind of capital transfer in essence .

Because buying and selling virtual currency meets the objective constitutive requirements of the two crimes , So in OTC In the transaction , The second part distinguishes the purpose of behavior 、“ Knowing ” Degree is particularly important . On the distinction of behavior purpose ,“ Help letter ” The subjective mentality of the actor is ,“ Knowing ” Others commit cyber crime , Help them commit crimes , The purpose of his behavior is to help commit a crime .“ Hide ” The subjective mentality of the actor is “ Knowing ” It's illegal income , Its purpose is to help cover up 、 Concealing the proceeds of crime to avoid judicial investigation . To the extent of knowledge , The possibility that buying and selling virtual currency is used by the help object for cyber crime , It is the cognition of probability, not the cognition of certainty , Generality 、 Vaguely aware that the person being helped may be committing a crime , Can press “ Crime of helping faith ” Conviction and punishment ;“ Knowing ” yes “ Proceeds of crime , And cover it up 、 hide , There is often a clearer understanding of the nature of funds and the amount of crime , Can press “ Crime of concealment ” set .

Finally, in the order of application ,“ Help letter ” and “ Hide ”, Although the subjective aspects of both are “ deliberately ”, But the cognitive content of consciousness and the purpose of implementing behavior are obviously different , The legislative orientation of the crime of helping trust is a supplementary provision . If there is no evidence that the perpetrator is really trying to cover up 、 Concealing the proceeds of crime in order to evade judicial investigation , Only according to misdemeanor ,“ Crime of helping faith ” set , Therefore, in OTC Transaction cannot be recognized as “ Crime of concealment ” when , Only then can it be applied “ Crime of helping faith ” There's room for .

The author of this article : Liu Lei

Master of economic law , Beijing PCCW ( Shanghai ) Law firm practicing lawyer , PCCW Shanghai “ The new decade . New youth ” Advanced model , Researcher, Institute of artificial intelligence and rule of law, Gansu University of political science and law .

practice : Lawyer Liu represented nearly 100 criminal cases involving digital currency , Focus on digital currency 、 Legal compliance in new economic fields such as blockchain .

academic : Lawyer Liu has published academic papers 2 piece , Published in 《 Journal of Shanghai University of political science and law 》、《 Social science trends 》, One of them won “ The first prize of Guangxi law society ”; In the central newspaper ——《 Democracy and rule of law 》 Publish two papers ; Publish articles in official account 50 Yu Wen ; To write 《 Digital and monetary law 》 A Book ( Submitted ).

Lawyer Liu was invited to “ Young leading talents of Gansu Law Association ” Give a lecture ; Be invited to “ The first digital financial rule of law forum ” Make speeches ; Invited to be hosted by the Department of justice of Hainan Province “ Foreign legal service lawyer talent training class ” Give a lecture ; Invited by Gansu University of politics and law .

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