Source: Mankiw Blockchain Law
01 Case Introduction
At the beginning of the new year, Little A found Mankiw lawyer worriedly and asked about the following matters : After returning home during the Chinese New Year, Little A happily had a routine gathering with his high school classmates BCDEF and others, eating, drinking and singing. After having enough wine and food, a group of people started playing cards. In order to increase the fun, everyone made a small bet of ten or eight yuan, and agreed that whoever loses will bet. However, as the fighting situation escalated, everyone raised their bets. Little A was drunk, but his IQ was still online. At that time, he reminded: Gambling is illegal! Just have fun, be careful not to include private money and others. So there was a smart suggestion: Why not use virtual currency as chips instead? Since virtual currency is not legal tender, it is not gambling, right? Everyone suddenly realized that they were using virtual currency as chips to continue their work. Little A felt vaguely that something was wrong, but couldn't tell what was wrong, so he used the excuse of being drunk and left the show.
After a while, a classmate named B called and asked to borrow virtual currency to help him. Little A guessed that they were still playing cards, but couldn't save face so he lent it to the other party. After a while, Little C and Little D also came to ask for help from Jianghu. Little A couldn't be fair to one, so he also borrowed the virtual currency. On the other side of the poker field, the small E card had good luck, but the B, C, and D cards lost a bit miserably. B, C, and D were dissatisfied, and after reviewing the surveillance video, they suspected that Little E was cheating. Of course, Little E denied it. In the end, the exchange between the few people was very unpleasant, and it went from being happy to being in an uproar. Ever since, when Little A asked B, C, and D to return the virtual coins, B, C, and D asked Little A to help condemn Little E. However, Little A's noncommittal attitude annoyed B, C, and D, so they angrily refused to return the currency and asked Little A to ask E for it. Little E said that he had never borrowed virtual currency from Little A. Why? Want to pay it back? ! So, helpless and speechless, Little A came to ask the lawyer how to get the virtual currency back.
02 Legal Analysis
Given that virtual currency, as a virtual commodity, is a Special property, so this article will first discuss how to get back the lent money or property that is used for gambling under general circumstances. Then we will discuss the issue of whether virtual currency can be returned when it is used as a loan.
1. If the loaned money is used for gambling, can I get it back?
1.1 If you know or should have known that the money lent was used for gambling, the lender may have difficulty getting it back, and may even face administrative or criminal risks.
Theoretically, at this time, there are two main opinions: yes and no, as to whether the lender can request the borrower to return the money involved in the case.
People who hold positive and negative views believe that when the lender knows or should know that the loan will be used for gambling, no matter whether the loan occurs at the gambling site, or he can guess that the loan will be used like Little A in the previous article. It is used for gambling. Since lending money to others for gambling is an act that violates the mandatory provisions of laws and administrative regulations as stipulated in the Civil Code, the loan is invalid. Just because a legal act is invalid does not mean that it has no legal consequences.
However, as to whether the lender has the right to recover the money involved in the case, people who hold positive and negative views hold different opinions and cannot agree on one thing -
Those who hold a positive view believe that , the borrowing act is invalid. According to Article 157 of the Civil Code, the property obtained by the borrower as a result of this act shall be returned. Otherwise, if the borrower continues to possess the money without reasonable reasons, it will be unjust enrichment and unfair to the lender.
Those who hold a negative view believe that although the Civil Code stipulates that the property related to an invalid contract should be returned to the original owner, it also specifically stipulates at the end of Article 157 that “if otherwise provided by law, , in accordance with its provisions"; according to the express provisions of the "Public Security Administration Punishment Law", gambling funds should be collected and returned to the victim, and if there is no victim, they should be turned over to the national treasury.
In practice, negative arguments are more powerful. Courts often refuse to accept or dismiss prosecutions on the grounds that gambling-related loans do not fall within the scope of legal protection, and at the same time transfer illegal clues to the public security organs for processing. Specifically, the lender knew or should have known that the loaned money was used for gambling, but still provided gambling funds. He knowingly committed the crime and was not considered an "infringed person". Therefore, in accordance with the "other provisions" clause in the "Public Security Management Punishment Law", the corresponding gambling funds should be turned over to the state treasury. Otherwise, if the money is returned to the borrower at this time, wouldn't it be a disguised form of protection for the lender who provided gambling funds? Moreover, since gambling-related activities are suspected of illegal crimes, lenders who provide gambling funds as co-participants or helpers may also be subject to administrative penalties or even face criminal risks depending on the severity of the case and the amount.
1.2 If you do not know and should not know that the loaned money is used for gambling, you can protect your rights through civil refund or administrative or criminal refund.
If the lender does not know and should not know that the loan is used for gambling when making the loan, such as the borrower deceives the lender from the beginning, or the borrower really intends to use the loan for gambling at the beginning. Yu Zhengtu only misappropriated the money for gambling afterwards, so even if the borrower later knows that he has been cheated or has changed his mind, the borrower can still claim the return of the loan through civil prosecution.
It should be noted that litigation is based on facts, and facts must be proved by evidence. If key facts are not supported by evidence, they are said in vain and lack credibility. In loan-related requests and defenses, the lender can present legal and valid loan contracts, transfer records, etc. to require the borrower to repay the money. The borrower can also refuse to repay the money on the grounds that the borrower has lent gambling funds and is therefore not protected by law. According to the litigation rules of "whoever claims the money shall provide evidence", if the borrower cannot produce real evidence to prove that the lender knew that the money was used for gambling, it will have no choice but to pay back the money. Therefore, even if in reality the lender was informed orally by the borrower and therefore knew that the money was used for illegal purposes, the lender later demanded the return of the debt on the grounds that there was a legal private loan. If the borrower cannot produce strong evidence to refute, he will suffer a loss and bear the consequences of being unable to provide evidence, that is, the defense will be invalid and he will still have to repay the loan.
In addition to civil litigation, if gambling is suspected of illegal and criminal activities, the gambling funds will be confiscated by the case handling agency. At this time, if the lender wants to get back the loan, he must actively communicate with the case-handling agency and take the initiative to provide evidence to prove that he is the "victim" or "victim". Therefore, he will be punished according to the provisions of the "Public Security Administration Punishment Law" or the "Criminal Law". The legitimate property of the offender or victim is returned or compensated.
2. If the lent virtual currency is used for gambling, can I get it back?
2.1 The lent virtual currency should be returned to the original owner unless suspected of any illegal crime.
If the borrower and the lender are not involved in any illegal crime, but the subject of the loan is virtual currency, then the lender can request the return of the virtual currency regardless of whether the virtual currency lending contract is deemed valid. currency.
Currently, the documents issued by the People's Bank of China and other ministries and commissions clearly state that virtual currencies are not legal and cannot be circulated in the market as currency. Business activities related to virtual currencies, including exchanges between virtual currencies and between virtual currencies and legal currencies, are considered illegal financial activities. At the same time, virtual currency is recognized as a property attribute of virtual goods.
Therefore, as far as the virtual currency lending contract is concerned, if the court determines that the lending behavior is valid based on the property attributes of the virtual currency, the lender can request the return of the virtual currency according to the prior agreement; if the court believes that the virtual currency If the loan is suspected of being an exchange business and is therefore invalid, the lender can request the return of the virtual currency in accordance with the statutory invalidity clause.
2.2 In the case of suspected illegal crimes, such as being used for gambling, whether the lent virtual currency can be recovered depends on whether the lender knew it when lending it.
As mentioned above, the protection rules for virtual currency lending are the same as general money lending, and there should be borrowing and repayment. When the lent virtual currency is used for gambling, the key to whether the lender can get it back lies in whether he subjectively knew or should have known where the money went when he lent it. According to different rights protection methods, the burden of proof is also different. Specifically:
Request the return of the lent virtual currency through civil litigation. Lenders who are not actually aware of the situation and who should not reasonably be aware of the situation only need to prove that they legally own the virtual currency and lend the virtual currency to others to fulfill the burden of proof. If the virtual currency is used for gambling due to being deceived by the borrower during the lending or the borrower changes his mind after the lending, the lender is not at fault and should be protected by law. If the borrower cannot provide evidence to prove that the lender knew that the virtual currency was being used for gambling when the currency was withdrawn, the lender's claim should still be supported by the court. If the borrower successfully provides evidence to prove that the lender was aware of the matter, the lawsuit may be dismissed by the court and transferred to the public security organs for handling.
Apply to the case-handling agency for the return of the seized virtual currency through administrative and criminal property return procedures. If the virtual currency is used for gambling and is seized by the case-handling agency, if the lender wants to recover the virtual currency as soon as possible, it needs to actively contact the case-handling agency and proactively provide evidence to prove that it did not know and should not have known that the virtual currency was being used as gambling capital when lending it. , that is, to provide evidence to prove that he was unaware that the lent virtual currency was used for illegal and criminal purposes, and that he was also among the "victims" or "victims", so as to strive to get back the virtual currency as soon as possible.
03 If I borrow virtual currency for gambling, do I need to pay it back?
This article discusses whether and how the lender can get back the lent virtual currency when it is used for illegal crimes. Readers who are quick-thinking may remember that the subtitle of this article is:Do I need to return virtual currency for gambling? The two are two sides of the same coin and are interrelated topics, so I click on them last.
Whose money is on the gambling table? The winner's, the loser's, or the over-the-counter loan? The answer is no, gambling funds should be confiscated and turned over to the state treasury. Only the lender who lent money off-site and did not know that the loaned money was used for gambling has the right to get his money back. As a creditor who has fulfilled its obligations, the lender should not be implicated and suffer property losses, just like "the law should not give in to the illegal" and "Those who abide by the law should not take the blame for the violators".
04 Mankiw’s lawyer suggests
1. Stay away from gambling and cherish life. It’s not okay to lend money to others for gambling! As far as casino operators are concerned, they are not afraid that you will win, but they are afraid that you will not gamble. According to the probability in the game, no one can win all the time. The more you win, the bigger the bet will be. In the end, you will lose all your previous wins. It is said that if you gamble for a long time, you will lose; , all kinds of cheating are emerging in endlessly, technology and ruthless activities are also advancing with the times, and they have appeared in great numbers. It is said that nine out of ten cheats are cheated.
2. Be cautious when lending virtual currency. If you are not prepared to take the blame, be prepared to take the blame! The lending and return of virtual currency is not easy to protect rights in practice. If you are accidentally involved in illegal activities during lending, the virtual currency may be lost or confiscated. If you want to come back at this time, you need to take the initiative to contact the case handling agency and provide evidence that the back check was done at the time of lending, that is, the lender has done the due diligence of a qualified creditor when lending. Obligation, does not know and should not know that the lent virtual currency will be used for illegal and criminal activities, etc. In short, the lent virtual currency is used in illegal ways, and even if it can be retrieved, it will be time-consuming, laborious, expensive and expensive.
Cheng Yuan
Xu Lin
JinseFinance
Others
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