21st Century Business Herald reporter Zhu Yingzi reported in Beijing On May 5, the Beijing Court Judgment Information Network disclosed a criminal lawsuit judgment document, involving the theft of virtual currencies worth 50 million yuan, including Tether, Ethereum , and Bitcoin. .
In the end, the People's Court of Chaoyang District, Beijing (hereinafter referred to as "Chaoyang Court") rejected the defense opinion put forward by the defender that it constituted a crime of destroying computer information systems, and supported the accusation made by the People's Procuratorate of Chaoyang District, Beijing (hereinafter referred to as "Chaoyang Procuratorate"). The defendant was found guilty of theft and sentenced to 12 years in prison, a fine of 200,000 yuan, and deprivation of political rights for 2 years.
It is worth noting that in judicial practice, courts in various places have different opinions on the determination of the theft of Bitcoin. Xiao Sa, partner of Beijing Dacheng Law Firm and director of the Bank of China Law Research Association, said in an interview with the media in 2021 that there are currently a large number of cases of stealing bitcoins. From the perspective of criminal judgments, there are mainly two views on the criminal law of stealing bitcoins : One is to identify Bitcoin as property, which meets the elements of criminal law theft, which constitutes the crime of theft; the other is to believe that Bitcoin is a kind of data, and stealing Bitcoin constitutes the crime of illegally obtaining computer information systems. The crime of sabotaging computer information systems in this case is similar to the crime of illegally obtaining computer information systems.
Thieves invade the platform system
According to the referee documents, at the beginning of 2019, Ling Yuesheng (pseudonym), who was in his thirties, was unemployed in a temporary residence in Yuncheng District, Yunfu City, Guangdong Province. As a primary school student, he wanted to use his mobile phone to "sweep wool", so he searched on Baidu. Teaching on how to crack network request packets and intrude into computer information systems.
Later, Ling Yuesheng discovered a method to tamper with the data in the network request packet, and told this method to his fellow villager Ling Shishan (pseudonym), who was also educated in elementary school. Since then, the two have been trying to hack into the system of a digital asset trading platform maintained by an information technology company in Beijing.
"I used the mouse to grab the data on the page, clicked and clicked, and finally found the loophole." Ling Shishan confessed. In October 2020, Ling Shishan discovered a transfer loophole in the system while using Ling Yuesheng’s account. He used a packet capture software to capture data on the platform, and then manually sent the captured data to the platform with a “-” at the beginning. You can see the increase in the virtual currency in your wallet account on the platform.
According to the report materials and system background logs of an information technology company in Beijing, on October 16, 2019, Ling Yuesheng registered an account on the above-mentioned platform and tried to attack the system he maintained, and continued to successfully invade the system until 4:00 am on October 15, 2020. After registering Lingshishan’s real-name account and successfully intruding into the system, he registered 17 real-name accounts successively and used the devices of these two people to log in in turn to attack the system loopholes and withdraw cash after success.
Only from 2:00 am to 5:15 am on the 16th, the two stole a total of 620,000 Tether coins, 12687.9956 ether coins, and 149.99627927 bitcoins. Ling Yuesheng put the private key of the stolen virtual currency in a golden Apple mobile phone, and stored it in the safe of his cousin's temporary residence. In addition, the two of them realized a total of about 2 million yuan, which was used to buy BMW cars and other expenses.
According to the testimony of Tian, the legal representative of the above-mentioned information technology company, at 9:00 am on the 16th, the company’s platform maintenance personnel discovered that there was an abnormally large amount of cash withdrawal on the platform they served. At that time, the price of TEDA was about 6.7 yuan each . The price of Fangfang is about 2,500 yuan each, and the price of bitcoin is about 79,000 yuan each. "Our company was entrusted by XX Global XX Ltd. to provide system development and maintenance and technical consulting services for a digital asset trading platform. According to the technical service contract signed between our company and the company, our company must pay the other party according to the agreement for the system intrusion incident. The company's RMB 50.2597 million."
After discovering the loophole, the information technology company overhauled the loophole, after which Tian reported the case to the public security organ, and locked Ling Yuesheng and Ling Shishan through the company log. Tian also said that in order to repair system vulnerabilities, the company also hired a third party to perform security repairs on the system, which cost 200,000 yuan.
On October 21, 2020, the public security organs arrested Ling Yuesheng and Ling Shishan and brought them into criminal detention the next day. They were arrested on December 8, 2020 and are currently detained in the Chaoyang District Detention Center in Beijing.
Data or property? What is the sentencing?
On May 6, 2021, the Chaoyang Procuratorate filed a public prosecution with the Chaoyang Court, arguing that the behavior of the defendants Ling Yuesheng and Ling Shishan violated the provisions of Article 364 of the Criminal Law, and they should be investigated for criminal responsibility for the crime of theft and submitted to the court for sentencing in accordance with the law.
However, the defendant Ling Yuesheng and his defenders disputed the charges. The defender believes that the virtual currency involved in the case does not belong to property, and the trading platform involved in the case is an overseas platform that violates regulations and should not be protected by law, and the amount of the alleged crime lacks factual and legal basis. Information system crimes are convicted and punished.
Regarding the above-mentioned defense opinions, the Chaoyang Court stated that according to the "Notice on Preventing Bitcoin Risks" and "On Preventing Token Issuance and Financing Risks" issued by the central bank and other ministries and commissions, the case involves Bitcoin, TEDA, Ethereum and other virtual currencies. It has monetary attributes such as legal compensation and mandatory, and does not belong to currency.
"However, the above-mentioned regulations do not negate the property attribute of virtual currency as a virtual commodity, and our country's laws and administrative regulations do not prohibit the holding and transfer of Bitcoin." The Chaoyang Court stated this in the opinion part.
The court also pointed out that the "Notice on Preventing Bitcoin Risks" mentioned that "in nature, Bitcoin is a specific virtual commodity." Therefore, virtual currency has property attributes and is a property interest, which is a crime of theft. legal interests protected.
The Chaoyang Court held that the defendant, under the control of the purpose of illegal possession, carried out the means of intruding and attacking the computer information system and the resulting behavior of stealing virtual currency and selling it for profit, which met the constituent elements of the crime of theft and should be charged with the crime of theft. Conviction and punishment, while the crime of sabotaging the computer information system only involves the evaluation of its means and behavior, and does not make a complete evaluation of the criminal behavior, so the defense opinion of the defender is not adopted.
Secondly, the defender mentioned that "the amount of the alleged crime lacks factual and legal basis". The court held that the overall value of the defendant's theft of virtual currency lacked an authoritative and neutral assessment agency to determine, so this case did not use the platform transaction value of more than 50 million to determine the amount of crime committed by the two.
The court further pointed out that it is objective and realistic for the defendant to sell the stolen virtual currency for more than 2 million yuan in profit. Based on the facts and the law, the amount of the stolen goods was used as the basis for conviction and sentencing of the defendant in this case.
Liu Yang, a lawyer from Beijing Deheng Law Firm, analyzed this and said that the court finally determined the amount of cash realized by the defendant as the criminal proceeds of theft, which is more appropriate for sentencing, but for some cases of theft that have not been realized, or profits After repeated transactions, if the initial amount cannot be determined, it is recommended to pursue criminal responsibility for the crime of illegally obtaining computer information systems.
In addition, the Chaoyang Court believes that whether the platform involved in the case is an illegal platform and whether the virtual currency on the platform is property protected by law are issues in two categories. Moreover, the defense did not provide conclusive and sufficient evidence to support the opinion that the platform involved in the case should be shut down as a violation of regulations. "But even if the property is illegally occupied, the possession is still a legal interest protected by the crime of theft before it is restored to its proper state through legal procedures. Therefore, the legal nature of the platform involved in the case does not affect the finalization of the defendant's behavior." Judgment so stated.
In the end, the court ruled that the defendants Ling Yuesheng and Ling Shishan were guilty of theft and sentenced to 12 years in prison, a fine of 200,000 yuan, deprivation of political rights for 2 years, and continued recovery of illegal gains.
Combining a recent civil ruling involving Bitcoin by the Beijing Arbitration Commission and recent currency-related cases, it can be found that courts in the Beijing area generally support the trial idea that "virtual currencies such as Bitcoin are virtual property and are protected by law", but the judgment The rules have also changed.
Referee Rule Changes
"Regarding the theft of virtual digital currency cases, the refereeing rules in the Beijing area are not the same at different time periods, and can be roughly divided into three stages." Liu Yang introduced to the 21st Century Business Herald reporter.
The first stage is before September 4, 2017. Most of the related cases are convicted and punished for the crime of theft. For example, the (2015) Dong Xing Chu Zi No. 1252 judgment of the People’s Court of Dongcheng District, Beijing shows that the court held that the defendant secretly stole other people’s property for the purpose of illegal possession, and the amount was relatively large. constitute the crime of theft and shall be punished according to law.
The second stage is from September 4, 2017 to 2021, starting with the "Announcement on Preventing Financing Risks of Token Issuance" jointly issued by seven ministries and commissions.
Liu Yang mentioned that the above-mentioned announcement clearly stated that "no pricing, information intermediary and other services shall be provided for tokens or 'virtual currency'", and the crime of theft is a property crime, which usually requires price appraisal of stolen items. Due to the impact of the announcement, it was impossible to issue a price appraisal report, and the handling of the case of stealing currency became a major problem for judicial agencies across the country. However, this kind of behavior is an act that violates the legal interests of the criminal law and must be cracked down. Therefore, from the data of virtual currency Attribute cut-in, determined as "crime of illegally obtaining computer information system" or "crime of destroying computer information system".
On July 6, 2018, the People's Procuratorate of Haidian District, Beijing charged the defendant with the crime of illegally obtaining computer information system data in Jinghaijian Science and Technology Criminal Prosecution [2018] No. 70. During his tenure as an operation and maintenance development engineer of Bitmain, Transferred 100 bitcoins from the company to his own e-wallet. In the end, the People's Court of Haidian District, Beijing supported the charges.
Liu Yang said that this case has opened up ideas for the national judiciary to crack down on coin theft cases after the above-mentioned announcement, and it is also the first coin theft case in the country where criminal responsibility has been investigated for the crime of illegally obtaining computer information system data.
The third stage is after 2021. There are "supporters" for the determination of the two charges, and there are differences in trials in various places. Since 2021, as the price of Bitcoin has risen all the way, more people have joined the army of currency speculation, and illegal activities in this field have become increasingly frequent.
"In this case, I personally think that the hearts of the staff of the judiciary have also quietly changed. For example, before, they believed that digital currency was worthless, but now, the specific undertakers of the case know in their hearts that virtual digital currency is real. Gold, silver and silver." Liu Yang mentioned to reporters that some judicial personnel would think that the criminal responsibility of the defendant for the crime of illegally obtaining computer information system data is too light and the punishment is not suitable for the crime.
At the same time, the judiciary has also strengthened the research on criminal offenses of virtual digital currency.
In May 2021, Li Hui, a first-level prosecutor of the Second Procuratorate of the People's Procuratorate of Haidian District, Beijing, wrote an article in the "China Prosecutor" magazine, "under the premise that the amount involved is particularly huge, the determination of computer-related crimes will lead to abnormally light sentences. , Whether it has punitive significance also needs to be further studied. As for the criminal law theory involving property crimes, it still needs to be further modified and expanded in the context of virtual currency.”
There are also opponents. At the Second Criminal Practice Forum on Preventing and Resolving Financial Risks held in July 2021, Yu Haisong, director of the Criminal Division of the Research Office of the Supreme People's Court, pointed out that virtual property undoubtedly has property attributes, but whether it is property is not yet clear in the prepositional law. In the case of unclear pre-legal basis, possessing the attribute of property does not necessarily mean that it becomes property in the criminal law, and property crimes do not necessarily apply to related acts.
"About the legal nature of virtual property, there is a lot of controversy in the civil law circle. Criminal law is the safeguard law of other departmental laws. When the pre-law is not yet clear, it is not necessarily the best choice to rush to the forefront of criminal law. The principles of criminal law should be adhered to. The attribute of the second law, try to maintain a humble position." Yu Haisong thinks so.
"The root cause of this result is that the legal status of Bitcoin in my country is not clear, and the regulatory policy is ambiguous." Zhong Haiwei, a lawyer from Shengdian Law Firm, pointed out in an article published in June 2021 that "stealing" Bitcoin The approach of characterizing the behavior of Bitcoin as the crime of illegally obtaining computer information system data is more like an expedient measure to avoid discussing the property attributes of Bitcoin, while the practice of directly characterizing the behavior of "stealing" Bitcoin as the crime of theft is unavoidable. In the face of doubts from the perspective of criminal policy and feasibility, it is difficult to say that the two approaches are appropriate.
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