Judgment gist of 11 typical criminal cases in the currency circle

Source: Lawyer Liu Yang

On April 27, 2024, the Supreme People's Court held a press conference, Announced that the People's Court case database is officially online and open to the public. The public can view it after registering and logging in. The URL of the People's Court Case Library is: www.rmfyalk.court.gov.cn. You can also click on the "People's Court Case Library" icon on the homepage of the official website of the Supreme People's Court to enter directly. Up to now, a total of 3,711 cases have been included in the case database of the People's Court. Lawyer Liu Yang sorted out and summarized all cases on virtual digital currency by searching for keywords related to virtual currency. There are a total of 11 criminal cases, mostly involving six types of crimes, including fraud, robbery, and casino opening. The biggest focus of controversy is whether virtual currency has property attributes under criminal law. Currently, the cases selected in the People’s Court’s case library tend to affirm the property attributes of virtual currencies, which is quite different from previous court rulings and may herald a shift in similar case judgments in the future.

1. Fraud crimes

(1) Feng’s fraud case: the criminal nature of virtual currency

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[Basic case facts]

From January to the end of February 2022, the defendant Feng Moumou, together with Dai Moumou, Liu Moumou, Wang Mou and others (all in separate cases) (Handling), renting in Qizhaqi Village, Qijiang District, Chongqing City, obtained information on other people's computers by sending "Trojan horse" programs to others, and then used various means to defraud others of their money. In mid-February 2022, Dai Moudong discovered that on the computer of the victim Zhou Mouping, who lived in Hutang Town, Wujin District, Changzhou City, there were chat records of Zhou Mou conducting Tether currency transactions with others through a Skype account, so he collaborated with Feng Mou and others. , pretending to be Zhou Mouping's Skype friend and forming a Skype group chat, and Feng Mouping remotely controlled Zhou's Skype account to enter the group chat. From February 19 to February 21, 2022, Dai used the method of pretending to be Zhou’s Skype friend, and in the above-mentioned Skype group chat, under the guise of trading TEDA coins with Zhou, he deceived Zhou into paying RMB 2,763,047 from others. 438206.00784 Tether coins were purchased.

The People's Court of Wujin District, Changzhou City, Jiangsu Province issued a criminal judgment of (2022) Su 0412 Xingchu No. 865 on November 15, 2022, and found that the defendant Feng A certain person was convicted of fraud and was sentenced to eleven years in prison and fined RMB 200,000. The defendants Feng and Dai were ordered to jointly refund RMB 2,763,047 to Zhou.
After the verdict was pronounced, the defendant Feng Moumou refused to accept the verdict and filed an appeal. The Intermediate People's Court of Changzhou City, Jiangsu Province issued the (2022) Su 04 Criminal Ending No. 210 Criminal Ruling on December 27, 2022, rejecting the appeal and upholding the original verdict.

[Reasons for Judgment]

The effective judgment of the court believes that the behavior of the defendant Feng Moumou constitutes the crime of fraud. In this case, Feng Moumou and others obtained the Tether currency of the victim Zhou Moumou, mainly by fabricating facts and concealing the truth, causing Zhou Moumou to have a wrong understanding and ultimately mishandling the property. Feng Moumou's behavior was consistent with the crime of fraud. Elements. Virtual currency does not have the same legal status as currency and cannot and should not be used as currency in the market. However, it can bring real economic benefits to the parties and its legal attribute should be recognized as property. Zhou Mouping's transaction record of purchasing Tether is a valid price certificate, and the amount of fraud can be determined based on the actual amount of property losses suffered by the victim.

[Judge Points]

Virtual currency has property attributes in the sense of criminal law and can become The subject of a property crime. In property crimes targeting virtual currency, the cost or consideration paid by the victim to obtain the virtual currency can be used to determine the loss suffered by the victim, and then determine the value of the virtual currency.

(2) Chen and other fraud cases: the property attributes of virtual currency in criminal law

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[Basic case facts]

In July 2019, Pan A certain person (at large) and others established a cultural media company in Beijing (hereinafter referred to as "Beijing Media Company"), with the defendant Chen Moumou serving as the legal representative. Later, the Beijing Media Company developed a cultural media company in Baoding (hereinafter referred to as "Baoding Media Company") and several other downstream companies. Salesmen from the downstream companies pretended to be "Bai Fumei" and used social software such as "Little Flame" and Hellotalk to chat with the victims to build trust. In order to deceive foreign or Taiwanese victims into transferring virtual currencies to six false investment platforms such as JUBI controlled by the company, they committed fraud. Beijing Media Company produced a false transaction interface in accordance with the requirements of downstream companies, allowing victims to see the illusion of profit on the platform. When the victim applies to withdraw coins, the downstream company sends the demand to the upstream Beijing Media Company, allowing the victim to withdraw coins in small amounts and charging a handling fee of 60 Tether coins, inducing the victim to continuously increase investment. When the victim applies for a large amount of currency withdrawal, the downstream company will continue to commit fraud on the grounds that he must pay taxes to withdraw the currency. When it is determined that the victim cannot continue to recharge virtual currency, the victim will be blacklisted and deleted. Beijing Media Company is responsible for cashing out the virtual currencies in the fake platform and distributing the interests of upstream and downstream companies. It was verified that in September 2021, Xu Moumou, a salesperson of the defendant Liu Moumou's business group, defrauded the victim JE TAEKYU (Chinese translation: Zhu Moumou) of 2.03986341 Bitcoins under the guidance of the business manager Liu Moumou, and defrauded the victim SEOL SUNG HWAN ( Chinese translation: Xue Moumou) 0.36271338 Bitcoin.
The People's Court of Fucheng District, Mianyang City, Sichuan Province issued (2022) Sichuan 0703 Xingchu No. 167 Criminal Judgment on June 12, 2023, and sentenced 15 defendants including Chen, Xian, and Jin to ten Fixed-term imprisonment ranging from two years and six months to two years and six months, and a fine ranging from RMB 200,000 to RMB 30,000. After the verdict was pronounced, the defendant Chen Moumou and others appealed. The Intermediate People's Court of Mianyang City, Sichuan Province issued the (2023) Sichuan 07 Criminal Ending No. 193 Criminal Ruling on November 30, 2023, rejecting the appeal and upholding the original verdict.

[Reasons for Judgment]

The effective ruling of the court held that: the main issue in dispute in this case is whether The defendant should be held criminally responsible for fraud and whether the audit report on file can be admitted as evidence.
1. Regarding the issue of whether the defendant should be held criminally responsible for fraud in this case
The "Notice on Preventing Bitcoin Risks" (Yinfa [2013] No. 289) stipulates that by nature, Bitcoin should be A specific virtual commodity does not have the same legal status as currency and cannot and should not be used as currency in the market. The "Notice on Further Preventing and Dealing with Speculation Risks in Virtual Currency Transactions" (Yinfa [2021] No. 237) stipulates that virtual currencies do not have the same legal status as legal tender. Virtual currencies such as Bitcoin, Ethereum, Tether, etc. have the main characteristics of being issued by non-monetary authorities, using encryption technology and distributed accounts or similar technologies, and existing in digital form. They are not legal and should not and cannot be used as currencies in the market. Used in circulation. It can be seen from the above provisions that although virtual currency does not have the legal status of currency, it cannot be denied that virtual currency has property interests and is property that should be protected by criminal law. Although virtual currency does not have legal compensation or circulation, it cannot be concluded that harmful behaviors carried out with virtual currency as targets are legitimate and legal. The "Opinions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Robbery and Robbery" stipulates that those who commit drugs, counterfeit money, obscene materials and other contraband as objects and commit robbery shall be convicted of robbery. It can be seen from this that even if a harmful act is carried out with contraband as the target, if it constitutes a crime, criminal responsibility should be investigated in accordance with the law. The defendant in this case used virtual currency as the target of his crime, which violated the legal interests protected by the criminal law. His behavior was socially harmful and criminally punishable. The defendant's subjective purpose in this case was to illegally possess the victim's property. He used the false virtual currency investment reason to cause others to fall into misconceptions and then disposed of the virtual currency he held. By realizing the virtual currency, he actually divided the stolen goods in RMB. His behavior complies with the constituent elements of the crime of fraud. In the process of committing the crime of fraud, the defendants themselves did not intend to illegally invade or illegally obtain computer information system data. Objectively, they did not obtain virtual currency by intruding into the computer information system or using other technical means. The virtual currency system The victim was deceived into misunderstanding and disposed of the electronic data with property interests. Obtaining virtual currency is only a means of committing the crime of fraud and is part of the crime of fraud. Therefore, the defendants in this case should be prosecuted for the crime of fraud. criminal liability.
2. The issue of whether the audit report on file can be accepted as evidence
Article 3, paragraph 1, of the "Measures for the Registration and Management of Forensic Authentication Institutions" stipulates that "the judicial appraisal institutions referred to in these Measures refer to those engaged in the "National "Legal persons or other organizations that provide judicial authentication services as specified in Article 2 of the Decision of the Standing Committee of the National People's Congress on Issues Concerning the Management of Forensic Expertise", and "Decision of the Standing Committee of the National People's Congress on Issues Concerning the Management of Forensic Authentication". Identification business only includes forensic identification, physical evidence identification, audio-visual material identification, and other identification matters that should be registered and managed by the judicial administrative department of the State Council in consultation with the Supreme People's Court and the Supreme People's Procuratorate based on the needs of litigation. Therefore, the audit matters in this case do not fall within the scope of the above provisions. Article 100 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" clearly stipulates that because there is no appraisal institution, or in accordance with the provisions of laws and judicial interpretations, people with specialized knowledge are assigned or hired to handle the case. Reports issued on sexual matters can be used as evidence. The accounting firm that issued the audit report in this case has a legal business license and accounting firm practice certificate, the auditors have Chinese certified public accountant qualifications, and the qualifications of the audit institution and auditors comply with legal requirements. The first-instance judgment applied the law correctly and the sentence was appropriate. Therefore, the second-instance ruling dismissed the appeal and upheld the original judgment.

[Judge summary]

Virtual currency is property in the sense of criminal law and can be illegally possessed If the purpose of defrauding others of virtual currencies constitutes a crime, it should not be considered as the crime of illegal intrusion into computer information systems or the crime of illegally obtaining data from computer information systems, and criminal liability should be investigated in accordance with the crime of fraud.

(3) Cases of fund-raising fraud and illegal absorption of public deposits by Chen Moumou and others: determination of illegal possession purpose for the crime of fund-raising fraud

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[Basic case facts]

In May 2019, the defendant Chen Moumou purchased "a company in Shandong Liaocheng" through others and changed its name to "Shandong XX Industrial Company" (hereinafter referred to as XX Industrial Company), and let Zhang Moumou (handled in a separate case) serve as the company's legal representative , Chen Moumou is the actual controller of the company. The registered business scope of a certain industrial company is chemical raw materials and products, business information consulting, corporate management consulting services, hotel management services, real estate development, operation, etc., but it advertises to the outside world that it owns donkey-hide gelatin, humic acid, film and other industries. In July 2019, Chen Moumou rented a hotel in Dong'a Zijin City as the office location of XX Industrial Co., Ltd., publicized and operated the "code laundering" business, and claimed that investors deposited 95% of the investment amount on the same day (1 for every 10,000 yuan). (minimum 1,000 yuan, maximum 500,000 yuan), 5% of the investment amount will be returned every day from the next day, the principal will be returned within 20 days, and 2 times the investment amount will be returned after 40 days. In order to encourage the development of the team and attract public investment, XX Industrial has set up point fees and service fees: the point fee is to reward team leaders based on 5% to 10% of the daily order amount; the service fee is to introduce others with investment performance of 110,000 If the amount reaches RMB 80.01 million and above, the introducer will be given rewards ranging from RMB 20 to RMB 100 per order per day. During this period, Chen Moumou hired the defendant Li to manage finances, the defendant Ma to be responsible for logistics work, and the defendants Cheng and Hao as accountants. Defendants Zhang Moumou, Ma Moumou, Li Moumou and others, despite knowing that so-and-so industry had not been approved by relevant departments in accordance with the law, faced high rebates and still actively participated in, developed personnel and absorbed funds as leaders of the so-and-so industrial team in the face of high rebates. Chen Moumou and others used WeChat self-media, word of mouth and other methods to falsely and exaggeratedly publicize that a certain industrial company operates the donkey hide gelatin industry, humic acid industry, and "code washing" business, but did not actually carry out production and operations. When XX Industrial did not make any profits, Chen Moumou used a large amount of funds to purchase virtual coins, pay employees' wages, and squander personal expenses, etc., resulting in a large amount of fund-raising funds that could not be returned to the fund-raising participants. After auditing, from July 25 to September 21, 2019, Chen Moumou and others absorbed a total of 652.73748307 yuan in public funds through 22 bank accounts.
From September 19 to October 3, 2019, the defendant Chen transferred a large amount of raised funds through the accounts of Li 1, Li 2, and Chen to purchase virtual currencies such as Bitcoin and Tether. Because Chen XX did not provide the account and password information for storing the virtual currency (it argued that it had been lost), and the public security organs have not yet been able to find out the whereabouts of the virtual currency. In addition, Chen Moumou invested 8.5 million yuan in a Zhejiang Film Co., Ltd. but has not recovered it. He received 1 million yuan in cash from Li and could not explain its whereabouts. More than 36.42927399 yuan of funds were not returned to the fund-raising participants.
The People's Court of Dong'a County, Shandong Province issued a criminal judgment (2020) Lu 1524 Xingchu No. 148 on May 22, 2021, and sentenced the defendant Chen Moumou to fourteen years' imprisonment for the crime of fund-raising fraud and a fine of RMB Five hundred thousand yuan (other judgment items omitted). After the verdict was announced, there was no appeal or protest, and the verdict has taken legal effect.

[Reasons for Judgment]

The effective judgment of the court held that the defendant Chen Moumou committed an illegal crime For the purpose of possession, using fraudulent methods to illegally raise funds, the amount is huge, and his behavior constitutes the crime of fund-raising fraud. The defender of the defendant Chen Moumou put forward the defense opinion that "Chen Moumou does not constitute the crime of fund-raising fraud, but constitutes the crime of illegally absorbing public deposits." After investigation, Chen Moumou deceived the public by falsely or exaggeratedly publicizing that a certain industrial operation operated the donkey hide gelatin industry, humic acid industry, and "code washing" business, and used the funds absorbed to provide high-value services when the company did not make any profits. After the capital chain was broken, they transferred a large amount of funds to purchase virtual coins and refused to account for the whereabouts of the virtual coins, resulting in the huge amount of funds raised being unable to be returned. Chen Moumou’s behavior complied with the provisions of Article 4, paragraph 2, of the “Interpretations of the Supreme People’s Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising”. It had the purpose of illegal possession and should be convicted and punished for the crime of fund-raising fraud. Therefore, the court made the above ruling in accordance with the law.

[Judge's Point]

The determination of the crime of fund-raising fraud depends on whether the perpetrator uses fraud In addition to raising funds illegally, the key lies in whether the perpetrator has the subjective purpose of illegal possession. If the perpetrator uses false or exaggerated publicity to deceive the public, and uses the absorbed funds to issue high service fees and discount fees when the company does not make any profit, it is in compliance with the "Specific Application Law of the Supreme People's Court on the Trial of Criminal Cases of Illegal Fund-raising" The situation stipulated in Article 4, Paragraph 2, Item 1 of "Interpretation of Certain Issues" that "the funds raised are not used for production and business activities or are used for production and business activities that are obviously disproportionate to the scale of funds raised"; the defendant transferred a large amount of funds after the capital chain was broken. Those who use funds to purchase virtual currency and refuse to account for the whereabouts of the virtual currency are in compliance with the provisions of Item 5 of “escaping, transferring funds, concealing property, and evading the return of funds” and Article 7 of “refusing to account for the whereabouts of funds and evading the return of funds”. situation. If deceptive means are used to illegally raise funds, and the above-mentioned circumstances lead to the inability to return the funds raised, it shall be deemed to have "illegal possession purpose" and constitute the crime of fund-raising fraud.

2. The crime of illegally absorbing deposits from the public

(1 ) Case of illegal absorption of public deposits by Ding Mouzhong and others: Priority should be given to refunding compensation to the victim in cases of competing criminal penalties based on the same fact

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[Basic facts of the case]

1. Facts of illegally absorbing deposits from the public
2018 On February 13, 2018, the defendant Ding Mouzhong and others registered and established a cloud digital goods company, and successively established related companies such as a rich commodity company to provide service support for a cloud digital goods company. Ding Mouzhong and others developed a digital e-commerce shopping platform APP. They adopted the method of "recruiting new people with old people" and graded incentives to publicly promote the development of digital mall consumer members to the society. They deliberately raised the sales price of goods to generate high price differences, and inflated the sales price of goods to consumers. Members carry out so-called "consumer rebates" and then use virtual currency investment as a gimmick to create a virtual currency "Yunyuan" whose price only rises but does not fall (not a digital virtual currency based on an algorithm) through human manipulation and false propaganda packaging. It allows consumer members to invest their "consumption rebates" into "Yun Yuan" and openly absorb funds from the public in disguise. According to the audit, from May 1, 2020 to June 8, 2021, a certain cloud digital APP platform attracted 477,720 consumer members across the country to purchase 113,933,646 "Yun Yuan", with a total sales amount of RMB 300,850,885.6 yuan. All the money paid by the aforementioned consumer members for purchasing goods on a certain cloud digital APP platform and investing in "Yunyuan" went into the accounts of affiliated companies such as a rich commodity company that are actually controlled by Ding Mouzhong and others.
It was also found out that on February 23, 2021, the Public Security Bureau of Yunmeng County, Hubei Province opened an investigation into this case. On November 16, 2021, a certain district market supervision bureau in G city issued an administrative penalty decision, confirming that a certain cloud digital goods company and a certain rich commodity company violated Article 7 (1) and (2) of the "Prohibition of Pyramid Selling Regulations" According to the provisions of this item, it is an illegal act of organizing and planning pyramid schemes. A cloud digital product company and a rich product company are fined 2 million yuan and a certain cloud digital product company and a rich product company are fined 2 million yuan. The illegal gains of a cloud digital product company and a rich product company are 299 995 918.97 Yuan shall be confiscated.
2. The tracing of the funds involved in the case
(1) From December 9 to December 20, 2021, the Public Security Bureau of Yunmeng County, Hubei Province in accordance with the law investigated the funds involved in the case of 235,294,387.29 yuan in the account of a rich digital commodity company. be frozen.
(2) On May 24, 27, and 31, 2022, a district court in G city enforced a certain product frozen by the Yunmeng County Public Security Bureau based on the administrative penalty decision of a certain district market supervision bureau in G city. There is a total of 235,294,387.29 yuan of funds involved in the company's account. On May 30, 2022, a district court in G city transferred 141,284,069.23 yuan of the aforementioned enforcement funds to a central branch of the National Treasury. On June 9, 2022, a district court in G city transferred 93,650,174.97 yuan of the aforementioned compulsory execution funds to the account of the Finance Bureau of a district in G city. On July 8, 2022, the Yunmeng County Public Security Bureau transferred 93,650,174.97 yuan in the aforementioned account. The funds involved in the case will be frozen in accordance with the law.
On August 19, 2022, the People's Court of Yunmeng County, Hubei Province issued a criminal judgment (2022) E0923 Xingchu No. 153, finding the defendant Ding Mouzhong guilty of illegally absorbing public deposits and sentenced him to thirteen years in prison. He was also fined 1 million yuan; the defendant Ren Mouhong was guilty of illegally absorbing public deposits and was sentenced to 11 years and six months in prison and fined 800,000 yuan; the defendant Xu Mouyan was guilty of illegally absorbing public deposits and was sentenced to 11 years and six months in prison and was fined 800,000 yuan. Sentenced to 11 years and six months in prison and fined 800,000 yuan; defendant Song was convicted of illegally absorbing public deposits and sentenced to 11 years and six months in prison and fined 800,000 yuan; the defendant Kang Mouwei was convicted of illegally absorbing public deposits and was sentenced to seven years in prison and fined 600,000 yuan; defendant Wang Mouting was sentenced to nine years in prison and fined 600,000 yuan for illegally absorbing public deposits; . The funds and interest illegally absorbed by the defendant shall be recovered in accordance with the law. The property seized or frozen by the public security organs due to the case will be recovered by the public security organs in accordance with the law and returned to the fund-raising participants in proportion. The insufficient part will continue to be recovered. After the recovered property is returned to the fund-raising participants, the remaining part will be turned over to the state treasury.
After the verdict was pronounced, the defendant Ding Mouzhong and others were dissatisfied and appealed. On October 28, 2022, the Intermediate People's Court of Xiaogan City, Hubei Province made the criminal ruling of the second instance court (2022) E09 Xingzhong No. 175, rejecting the appeal and upholding the original judgment.

[Reasons for Judgment]

The effective judgment of the court held that the defendant Ding Mouzhong and others Knowing that a cloud digital goods company does not have the qualifications to openly absorb public funds and violates national financial management regulations, it publicly promotes and promotes through promotion meetings, online videos, media reports, "recruiting new people with old people", etc., to invest in virtual currency " "Yunyuan" used the preservation and appreciation of funds as bait to openly absorb funds from the public. This behavior is an illegal absorption of public funds through virtual currency transactions and constitutes the crime of illegal absorption of public deposits. A cloud digital goods company, a rich commodity company in Shandong, and a film and television culture media company in Qinhuangdao are all capital channel platforms actually controlled by Ding Mouzhong and others for illegally absorbing public deposits. The aforementioned companies were seized and frozen by the Public Security Bureau of Yunmeng County, Hubei Province The funds in the account totaling 235,302,395.15 yuan and their interest should all be determined as illegal gains from the crime of illegally absorbing public deposits according to law. In accordance with the provisions of Article 64 of the Criminal Law of the People's Republic of China, the aforementioned illegally obtained funds shall be returned to the fund-raising participants, and the shortfall shall be refunded by Ding Mouzhong and others.

[Judge Points]

1. Determination of the same act under the intersection of criminal offenses. When the same act constitutes both an administrative violation and a criminal offense, the principle of criminal priority shall apply in procedure. For the identification of "the same act", the principle of legality of crime and punishment should be adhered to at the substantive level, that is, the acts that constitute administrative violations can be all covered by a specific crime as elements of the crime.
2. The constitutive acts of the crime of illegally absorbing public deposits are composite acts, which include not only the act of absorbing raised funds, but also the conduct of publicity and inducement for the purpose of absorbing raised funds. The two are actually the same act.
3. Regarding the order of execution of compensation for victims. In accordance with the principle of transfer to criminal processing when the same act has competing criminal penalties, when the case has been characterized as a criminal offense, the property involved in the case should be disposed of within the framework of criminal procedures. According to Article 13 of the "Several Provisions of the Supreme People's Court on Partial Enforcement of Criminal Judgments Involving Property", the person subject to execution shall bear both criminal liability and civil liability during execution, and if his property is insufficient to pay, execution shall be carried out in the following order:… (2) Compensation for the victim’s losses;… (4) Fines; (5) Confiscation of property. In the order of execution, refund of compensation to fund-raising participants should take priority over the execution of fines and confiscation of property.

3. Robbery

(1) Zhang Robbery case: The handling of a case in which the victim was forced to buy Bitcoin and then robbed the Bitcoin and resold it for cash

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[Basic facts of the case]

From March 28 to April 2, 2021, the defendant Zhang, together with Zhang Moujia and Liu Mou (both already Sentencing) The victim Cui was forcibly taken to a forest near Baipenyao in Fengtai District, Beijing. He was threatened with a knife, tied up and beaten, forcing Cui to purchase 2.529 Bitcoins for 936,000 yuan, and then scanned the code and transferred it to Zhang A's arrangement. Anonymous virtual wallet provided by Chen Moumou. Later, Chen Moumou and Wang Moumou resold the above-mentioned Bitcoins and realized a profit of 930,2472 yuan. Zhang Moumou, Liu Moumou, Chen Moumou, and Wang Moumou shared the stolen goods together.
In April 2021, the defendant Zhang, together with Zhang A and Zhang B (who have been sentenced), illegally inquired about other people’s addresses, vehicles and other personal information, and tracked and stalked them in Chaoyang District, Beijing and other places. Create conditions for committing robbery crimes. Zhang was captured on June 28, 2022.
Beijing Chaoyang District People's Court issued (2022) Beijing 0105 Xingchu No. 1484 Criminal Judgment on April 10, 2023: The defendant Zhang committed robbery and was sentenced to 12 years and six months in prison, with deprivation of political rights. Three years, a fine of RMB 130,000, and a deprivation of political rights of one year, ten months and eighteen days, which has not yet been completed for the previous crime. It was decided to execute a fixed-term imprisonment of twelve years and six months, deprivation of political rights for four years and ten days. On March 18, a fine of RMB 130,000 was imposed; the defendant Zhang was ordered to compensate the victim Cui for his economic losses. After the verdict was announced, there was no appeal or protest, and the verdict has taken legal effect.

[Reasons for Judgment]

The court’s effective judgment held that: the defendant Zhang, together with others, committed He robbed others of Bitcoins by threatening violence, and the amount was huge, and his behavior constituted the crime of robbery; Zhang also collaborated with others to create conditions for the crime of robbery, which was criminal preparation and also constituted the crime of robbery. In this case, the defendant and his gang forced the victim to purchase 2,529 Bitcoins for 936,000 yuan and then robbed the bitcoins, causing a loss of 936,000 yuan to the victim. This is no different from directly robbing the victim of 936,000 yuan, which is what should be determined in this case. The value of the virtual currency was determined instead of the amount of more than 930,200 yuan of stolen goods sold by the defendant and his group. Zhang is a repeat offender and shall be severely punished in accordance with the law; Zhang's subsequent robbery was a preparatory act and shall be given a lighter punishment than a completed offender in accordance with the law; Zhang voluntarily pleads guilty in court and shall be given a lighter punishment as appropriate. If a new crime is committed during the period of execution of the additional deprivation of political rights for the previous crime, the unexecuted punishment for the previous crime shall be punished concurrently with the new crime according to law. Therefore, the court of first instance made the above judgment in accordance with the law.

[Referee’s Point]

Using violence, coercion and other methods to force the victim to buy Bitcoin , and then robbed the purchased Bitcoins and resold them for cash, which was actually a robbery of the consideration for purchasing Bitcoins, the provisions of Article 263 of the Criminal Law should be applied, and the person would be convicted and punished for the crime of robbery. The amount of robbery should be determined based on the consideration paid by the victim.

4. The crime of organizing and leading pyramid schemes

( 1) The case of a pyramid scheme organized and led by Chen Mouzhi and others - the identification of the nature of the behavior of requiring investors to purchase coins to join the platform in the name of providing virtual currency value-added services and settling the proceeds based on its development and offline development

https://rmfyalk.court.gov.cn/dist/view/content.html?id=r3X95PSgR1mZtkoOQXri9dPbNV%252BoNSFxs3V2hhwFfvk%253D&lib=ck&qw=Virtual Currency

[Basic Case Facts]

In October 2018, the defendant Chen Mouzhi and others jointly established the EOS Ecosystem The platform (hereinafter referred to as the EOS platform) is a MLM organization and carries out MLM activities across the country through the Internet using EOS currency as a carrier. The main publicity methods are organizing on-site meetings, training, and establishing WeChat groups. In the name of providing virtual digital currency value-added services, the platform promotes that it can obtain income through the annual distribution of EOS coins, carry trades, candy airdrops, system resource leasing, project crowdfunding mortgages, currency holding value-added, etc., but in fact the platform Most of the above-mentioned profit methods are not available. Participants need to pay 10-300 EOS coins to qualify to join the platform. After members join, they form hierarchies in a certain order, and directly or indirectly use the amount of investment, the number of people developed, and the level of development as the basis for rebates, thereby inducing participants to continue to develop others to participate. In addition to receiving static income based on the amount of EOS coins invested, each participant also receives dynamic income based on the number of downline development and the amount of downline investment.
According to judicial appraisal by a data forensic appraisal center in Shanghai, from October 20, 2018 to April 19, 2020, the EOS ecological platform had a total of 456,133 member accounts with a level of 58, and received a total of 52456878.725 EOS recharges from members. currency. According to the appraisal by the Price Validation Center of Dongtai Price Bureau of Jiangsu Province, during this period, the minimum value of EOS coins was RMB 9.6893. Based on this price, the above-mentioned EOS coins were worth RMB 508,270,435.
The founders of the EOS platform are nine people including the defendants Chen Mozhi, Ding Moodong, Ding, Li Mooyan, Yu, Wang Mofei, Sun Moogang, Zhou Mouzheng, Zhang Moulin, etc., who are responsible for the platform operation, planning, training, publicity and daily management and coordination. After the defendants Zhou Mouping, Chen Moujun, Chu Moujie, Wang Moulan and Zhou Moulin joined, they actively participated in promotion and publicity and developed members. Each defendant made illegal profits through the above-mentioned pyramid selling activities.
The People's Court of Dongtai City, Jiangsu Province issued (2020) Su 0981 Xingchu No. 600 Criminal Judgment on September 16, 2021: Each defendant was sentenced to two years to five years and ten months for the crime of organizing and leading pyramid selling activities. shall be sentenced to fixed-term imprisonment and shall also be fined. The seized virtual currency shall be dealt with in accordance with the law, and the funds and income obtained shall be confiscated in accordance with the law and turned over to the national treasury. The stolen money from the defendants, MLM participants and their relatives and friends who assisted in the exit will be recovered and confiscated in accordance with the law and turned over to the state treasury. After the verdict was announced, Zhang Moulin and Ding Mou filed an appeal. The Intermediate People's Court of Yancheng City, Jiangsu Province made a (2021) Su 09 Criminal Ending No. 421 Criminal Ruling on November 23, 2021: the appeal was rejected and the original verdict was upheld.

[Reasons for Judgment]

The effective judgment of the court held that: Regarding whether this case is consistent with the organization and leadership Issues regarding the constituent elements of the crime of pyramid schemes. The crime of organizing and leading pyramid schemes in criminal law refers to the practice of promoting goods, providing services and other business activities, requiring participants to pay fees or purchase goods, services, etc. to obtain qualifications to join, and to form hierarchies in a certain order, directly or indirectly. Using the number of development personnel as the basis for remuneration or rebate, luring and coercing participants to continue developing others to participate, defrauding property, and disrupting economic and social order. In this case, the defendant required participants to purchase 10-300 EOS coins online to recharge the platform to obtain qualifications to join. The platform will obtain static income based on its own recharge amount, and dynamic income based on its offline recharge amount, number of recharges, etc. . The settlement method of income is EOS currency. The source of income mainly depends on the number of downlines and the amount of downline investment, rather than income from the rise and fall of the market price of EOS coins, and the EOS platform itself does not have most of the profit models it promotes. , basically relying on recruiting people to get offline to maintain the operation of the platform. The behavior of each defendant in this case should be determined as a pyramid scheme. Secondly, according to relevant regulations, those who initiate, plan and control MLM activities, and assume management, coordination, publicity, training and other responsibilities, as well as other personnel who play a key role in the implementation of MLM activities, the establishment and expansion of MLM organizations, etc. All can be recognized as organizers and leaders of MLM activities. Each defendant in this case meets the above-mentioned identification conditions of "organizer and leader". Nine people, including the defendant Zhang Moulin, are responsible for or participate in the daily operations and decision-making of the platform. As core members of the platform, they should be identified as the principal culprits. Finally, pyramid selling activities adopt the method of fabricating and distorting national policies, fabricating and exaggerating business, investment, service projects and profit prospects, concealing the true source of remuneration and rebates or other fraudulent means, and committing acts stipulated in Article 224-1 of the Criminal Law. Anyone who illegally profits from the fees paid by persons participating in pyramid selling activities or the fees for purchasing goods or services shall be deemed to have obtained property by fraud. In this case, the EOS platform does not have most of the profitability advertised by the defendants, and mainly profits from the investments of MLM participants. In summary, the actions of each defendant in this case are consistent with the criminal constitution of organizing and leading pyramid schemes.
As for the determination of the amount of illegal income, MLM activities are not legal business activities that require qualifications, but are completely prohibited by law. When calculating the amount of crime, the expenses for MLM personnel training, conference affairs, etc. should not be deducted. The funds invested by participants are property used in pyramid schemes and shall be included in the amount of the crime.
To sum up, the defendants Chen Zhi, Ding Dong, Ding, Li Yan, Yu, Wang Fei, Sun Gang, Zhou Zheng, Zhang Lin, Zhou Ping, Chen Jun, In the name of providing virtual digital currency value-added services on the platform, Chu Moujie, Wang Moulan, and Zhou Moulin require participants to pay 10-300 EOS coins to activate and form tiers in a certain order, directly or indirectly based on the number of developed personnel. , investment amount, and development level are used as the basis for rebates to induce participants to continue to develop other people to participate, defraud property, disrupt economic and social order, and the circumstances are serious, which constitutes the crime of organizing and leading pyramid schemes. This case is a joint crime. Among them, the defendants Chen Mouzhi, Ding Moudong, Ding Mou, Li Mouyan, Yu Mou, Wang Moufei, Sun Mougang, Zhou Mouzheng, and Zhang Moulin played a major role in the crime and were the principal offenders. The defendants Zhou Mouping, Chen Moujun, Chu Moujie, Wang Moulan, and Zhou Moulin played a secondary and auxiliary role in the joint crime and were accessories, and their punishment was reduced. The defendant Chu Moujie voluntarily surrendered and truthfully confessed the facts of the crime. He surrendered and was given a lighter punishment. Defendants Ding Moudong, Ding Mou, Sun Mougang, Zhang Moulin, Zhou Mouping, Chen Moujun, Wang Moulan, and Zhou Moulin may be given a lighter punishment if they truthfully confess their crimes after returning to justice. Defendants Chen Zhi, Ding Dong, Ding, Li Yan, Yu, Wang Fei, Sun Gang, Zhou Zheng, Zhang Lin, Zhou Ping, Chen Jun, Chu Jie, Wang Lan and Zhou Moulin voluntarily plead guilty and accept punishment, and may be treated leniently in accordance with the law.

【Referee's Points】

1. After several banks established an online platform, they used the platform to In the name of providing virtual currency value-added services, participants are required to purchase a certain amount of virtual currency to recharge the platform to qualify for membership. The platform does not have most of the profit models advertised by the perpetrators, and mainly makes illegal profits from the investments of participants at all levels. The settlement method for participants' income is virtual currency. The income mainly depends on the number of their downlines and the amount of downline investment. If the income is not derived from the rise and fall of the market price of virtual currency, it should be regarded as a pyramid scheme.
2. Regarding the determination of the amount of illegal income from the crime of organizing and leading pyramid selling activities. When calculating the amount of a pyramid scheme crime, expenses such as training of pyramid schemes personnel and conference affairs should not be deducted. However, the funds invested by pyramid schemes participants are property used in pyramid schemes crimes and should be included in the amount of the crime.
3. Regarding the disposal of the virtual currency involved. In the crime of organizing and leading pyramid schemes targeting virtual currencies, although investors other than the defendant were lured to join the platform and recharged to purchase virtual currencies to obtain membership qualifications, in order to obtain higher returns, the investors followed the platform's requirements The behavior of continuously developing offline and allowing others to continue to recharge and purchase virtual currencies on the platform has made investors become participants in pyramid schemes, but they have not been punished simply because they did not meet the criminal penalty standards. Therefore, the virtual currency seized by the MLM platform will not be returned as the property of the victim.

(2) Case of Luo Moumou organizing and leading pyramid selling activities: The defendant’s investment in organizing and leading pyramid selling activities and losses incurred did not affect the nature of his behavior Recognition

https://rmfyalk.court.gov.cn/dist/view/content.html?id=iPmAGOsfHJ%252BkQNhqOn6Jq3dN4kgbsT4efjNHSHRydsw%253D&lib=ck& ;qw=%E8%99%9A%E6%8B%9F%E8%B4%A7%E5%B8%81

[Basic Case Facts]

A network technology company develops an APP to engage in virtual currency acceptance business by recruiting members. The members are divided into social worker, supervisor, manager and other levels from bottom to top. The superior manager "Yi" ” and others often give online classes to members. The platform stipulates that after old members recommend new members to register an account, the new member must pay 100 yuan to activate the account. Members will form uplines and downlines in the order of recommended development. Based on the number of downlines developed and the amount of investment, the platform will provide rebates in the form of virtual currency. From January to May 2021, the defendant Luo Moumou was introduced as a registered member. In order to obtain more benefits for promotion, he directly or indirectly developed more than 30 people offline, with levels above level 3, and the team members invested a total of more than 800,000 yuan. , the loss was at least more than 300,000 yuan, and Luo Moumou himself lost more than 100,000 yuan.
The People's Court of Yifeng County, Jiangxi Province issued a criminal judgment (2021) Gan 0924 Xingchu No. 342 on December 29, 2021, finding that the defendant Luo Moumou was guilty of organizing and leading pyramid selling activities, and was sentenced to one year and two months in prison month, and be fined RMB 20,000. After the verdict was announced, Luo Moumou was dissatisfied and appealed. The Intermediate People's Court of Yichun City, Jiangxi Province issued the (2022) Gan 09 Criminal Ending No. 41 Criminal Ruling on February 10, 2022, rejecting the appeal and upholding the original verdict.

[Reasons for Judgment]

The court’s effective judgment held that the defendant Luo Moumou In the name of virtual currency, participants are required to pay a fee to obtain qualifications to join, and more than 30 participants are organized into levels above level 3 in a certain order. The number of development personnel is directly or indirectly used as the basis for calculation or rebate, to induce participants to continue Encouraging others to participate, defrauding property and disrupting economic and social order has constituted the crime of organizing and leading pyramid schemes. As for the opinion raised by Luo Moumou and his defender that Luo Moumou had no intention to organize or lead pyramid selling activities, nor did he use the number of people he developed as the basis for rebates, he had no actual profits, and his behavior did not constitute the crime of organizing or leading pyramid selling activities. According to the investigation, Luo Moumou understands the MLM model. In order to obtain high rewards, he actively develops new members and has the intention to participate in organizing and leading MLM activities; Luo Moumou obtains virtual currency rewards by developing new members and is developing a certain number of new members. Later, he will be promoted to member level and obtain additional rewards from the management team. The number of direct or indirect development personnel is the basis for Luo Moumou to obtain rebates; combined with the number and level of Luo Moumou's development team members, he should organize and lead MLM activities in accordance with The crime was convicted and punished. Because the capital chain of the MLM organization was broken, Luo Moumou himself failed to recover the funds invested, which did not affect the determination of the nature of his behavior. Therefore, the first and second instances made the above ruling.

[Judge summary]

The defendant participated in the organization and leadership in the name of promoting goods. Participants are required to pay a fee to obtain qualifications to join and form levels in a certain order. The number of development personnel is directly used as the basis for rebates to induce participants to continue to develop others to participate. The direct or indirect development of downline personnel is more than 30 people and the level is in Level 3 or above, whose behavior is fully in compliance with the "Opinions on Several Issues Concerning the Application of Laws in the Handling of Criminal Cases Organizing and Leading MLM Activities" of the "Two High Schools and One Ministry of Education" on the determination of the level and number of MLM organizations, and they shall be organized and led in accordance with the regulations of MLM activities shall be held criminally responsible. If the capital chain of the MLM organization is broken and the defendant himself loses money invested, this will not affect the determination of the nature of the behavior.

5. Concealing and concealing criminal proceeds

( 1) The case of Chen and others covering up and concealing criminal proceeds: Determination of "knowingly" in online payment and settlement assistance activities

https://rmfyalk.court.gov .cn/dist/view/content.html?id=ghLj5wjJyY8oKtulkH%252BwGZCRsOVlLCG04CGwLV9YPZw%253D&lib=ck&qw=%E8%99%9A%E6%8B%9F%E8%B4%A7%E5%B8%81< /p>

[Basic facts of the case]

The defendant Chen and Li A knew each other, and Li Jia Met Li Mouyi. Around December 2020, Li A and Li B successively organized the defendants Chen, Li Bing, Yao and others (all handled in separate cases), knowing that others needed bank cards to transfer illegal and criminal proceeds. Using bank cards to transfer the proceeds of crime. Knowing that Li A and others used bank cards to transfer illegal and criminal proceeds, Chen provided three bank cards with his own real name, and frequently transferred money from different accounts at night according to the arrangements of Li A and Li B. Transfer the money to a specific account or participate in the transfer by purchasing virtual currency, and keep accounts and reconcile accounts through the chat group established by Li Moujia and others with the online chat group. According to statistics, during the period when Chen was involved in the crime, the gang transferred a total of 3,966,893.4 yuan in telecom network fraud funds. Among them, the three personal bank cards provided by Chen were used to transfer telecom network fraud funds totaling 147,185.17 yuan.
On February 20, 2021, after Li A, Li B and others were arrested by the public security organs, the defendants Chen and Du, together with Ren and Chen (handled in another case), knowingly knew that others needed When bank cards are used to transfer illegal and criminal proceeds, organize Lv Moumou, Zhang Moumou, Wei Moumou, Zhao Moumou and others (all handled in separate cases) to use bank cards to transfer criminal proceeds. Among them, Chen is responsible for contacting the upline and keeping accounts, Du is responsible for paying deposits and visiting people, Ren is responsible for finding people, and Chen is responsible for finding transfer locations and picking people up. According to statistics from the investigation agency: Chen, Du and others used bank cards to transfer 441,195 yuan of fraudulent funds on the telecommunications network. Among them, Du Moumou provided the Industrial and Commercial Bank of China card and the Postal Savings Bank of China card in his own name to transfer 20,800 yuan of telecom network fraud funds.
The People's Court of Qinyang City, Henan Province issued a judgment (2021) Henan 0882 Xingchu No. 322 on December 25, 2021, finding that the defendant Chen was guilty of covering up and concealing criminal proceeds, and was sentenced to four years in prison and punished The defendant was sentenced to two years in prison and fined RMB 5,000. After the verdict was announced, both defendants appealed. The Intermediate People's Court of Jiaozuo City, Henan Province issued the (2022) Henan 08 Criminal Ending No. 50 Criminal Ruling on March 10, 2022, rejecting the appeal and upholding the original verdict.

[Reasons for Judgment]

The effective judgment of the court held that: the accomplices Li Moujia and Li Mou B. The confessions, bank transaction details, WeChat transfer records and other evidence of Chen XX, Ren XX, Wei XX, Zhao XX, Xiao XX and others corroborate each other and can prove that Chen XX When organizing others to use bank cards to transfer funds online, they provide their own bank cards to frequently transfer money from different accounts to specific accounts at night or by purchasing virtual currencies. After Li Moujia and others were captured, Chen Mou, together with Du Moujia and others, organized others to continue using the same method to transfer money. Chen's act of providing bank cards to others may constitute the crime of assisting information network criminal activities, but he not only provided bank cards, but also participated in and organized others to use bank cards to frequently transfer money from different accounts to specific accounts at night or purchase through These two behaviors have obvious illegal characteristics and are obviously not the behavior of helping friends transfer money in the general sense. In particular, Chen is responsible for contacting and keeping accounts in the gang. The existing evidence shows that Chen subjectively Knowingly knowing that the money he transferred was the proceeds of crime. Objectively speaking, Chen participated in and organized the transfer of funds amounting to 4,408,088.4 yuan, knowing that they were proceeds of crime. Chen’s behavior complies with the criminal elements of concealing and concealing the proceeds of crime, and he should be held criminally responsible for the crime of concealing and concealing the proceeds of crime. Therefore, the first and second instance courts made the above rulings in accordance with the law.

[Referee's Points]

1. Subjectively "knowingly" determines the problem. "Knowingly" refers to the subjective intention of the perpetrator. In cases of providing assistance, "knowingly" is the key to determining whether and what kind of crime the perpetrator commits, and is the focus of the use of evidence to prove during the trial process. However, "knowingly" is a psychological activity. Unless it is stated by oneself, it is generally difficult for the outside world to directly recognize it. Therefore, one can only judge whether "knowingly" is "knowingly" based on the perpetrator's confession and the behavioral process shown to the outside world. Symptoms to determine whether the perpetrator is "knowingly" include: the time, place, quantity, price, variety of the perpetrator's cover-up and concealment behavior, the relationship between the perpetrator and the predicate criminal perpetrator, the degree of understanding, and whether the perpetrator avoids investigation, etc. Factors should be judged based on the cognitive level of ordinary people and the cognitive ability of the perpetrator. For example, if the perpetrator agrees with others to deliver items in a secret location, it indicates intentional avoidance. In this case, the defendant Chen and Chen A knew each other, and they were pulled into the chat group established by Chen A and his superior to keep accounts and reconcile accounts, which is enough to show that he had some understanding of the nature of Chen A and his superior's behavior. Cognizant, and after providing the bank card, he frequently transferred money from different accounts to specific accounts at night according to the arrangements of Chen Moujia and others, or participated in transfers by purchasing virtual currency, and through Li Moujia and others with the online Established chat group accounting and reconciliation. This is sufficient to infer that Chen was "knowingly" aware that the money he handled was the proceeds of crime.
2. "Knowingly" is an important factor in distinguishing the crime of assisting information network criminal activities and the crime of covering up and concealing criminal proceeds. The "knowingly" content of the crime of assisting information network criminal activities is "others use information networks to commit crimes." The awareness of the relationship between the money involved and the predicate crime is relatively low, and can be understood as general knowledge; concealment and concealment The content of "knowingly" in the crime of proceeds of crime and proceeds of crime is that the money involved is "the proceeds of another person's crime", which requires a high degree of cognition, including clear knowledge or highly probable knowledge. When distinguishing between the crime of assisting information network criminal activities and the crime of covering up or concealing criminal proceeds, the principle of consistency between subjectivity and objectivity must be adhered to. If the perpetrator knows that others are using information networks to commit crimes, but still helps others by providing bank cards, etc., it constitutes the crime of assisting information network criminal activities. However, it cannot be done without analysis and demonstration, just because he provides a bank card and then helps transfer money or scan his face for verification. That is to say, they are all upgraded to covering up and concealing the consequences of a crime. The act of transferring money itself cannot prove that the perpetrator knew that the money involved was "the proceeds of another person's crime." It is necessary to specifically analyze whether the objective behavioral representation of the case proves that the perpetrator has a higher degree of "knowledge" to ensure that the punishment is worthy of his crime. Generally speaking, for those who help others frequently transfer, cash out, and withdraw money multiple times or use multiple bank accounts, use virtual currency to transfer, cash out, and withdraw money, transfer, cash out, and withdraw money through illegal payment platforms and benchmarking platforms, just transfer, cash out, and withdraw money. If an extra "handling fee" is charged for withdrawals, it can be deemed as having "knowingly" to cover up or conceal criminal proceeds.

6. Crime of opening a casino

(1) Zheng Casino case opened by XX, Peng and Yang: Calculation of the amount of gambling money for online gambling

https://rmfyalk.court.gov.cn/dist/ view/content.html?id=8szTyn2Dr3XK5s2gcyifbLwjntfDWPbQ7yYH3Pr50%252BA%253D&lib=ck&qw=%E8%99%9A%E6%8B%9F%E8%B4%A7%E5%B8%81

[Basic Case Facts]

"Tycoon Interactive Entertainment" and other online gambling platforms have "beating Niu Niu" and "pushing San Gong" In gambling models such as "Zha Jinhua", the platform accepts gamblers to recharge and redeem points to participate in gambling, take a cut of the profits, and rebate the cut to the platform agents or partners in proportion. Platform agents, that is, partners, gradually develop offline and attract people to participate in gambling, and take profits based on the amount of profits made by their offline participation in gambling. The defendants Zheng and Peng successively accepted bets from others on multiple online gambling platforms such as "Tycoon Interactive Entertainment", "Hongyun Tea House" and "Big Alliance", and settled the upper and lower points for gamblers in order to obtain profits. Defendant Yang Moumou knew how the gambling website operated, but still attracted people to gamble, and introduced gamblers to Zheng Moumou and Peng Moumou to get "water money".
From February 2020 to April 2021, the gamblers Rao and Xie attracted by the defendant Yang Mou made bets on the above-mentioned online gambling platform through the defendants Peng and Zheng. According to judicial appraisal, the amount of WeChat and Alipay transfers actually used by Rao and Xie to Zheng and Peng during gambling was 1,336,586 yuan, involving 7 gambling platforms in Hong Kong, the United States and other places. Rao and Xie automatically extracted "water money" through the platform. After the platform rebates to Zheng at a rate of 8%-10%, Zheng gave it to Peng at a rate of 75%-80%, and Peng then gave it back to Zheng. 50% of the profit was returned to Rao, and the remaining portion was divided equally between Yang and Peng. Yang and Peng made a profit of 12,565 yuan. After the incident, Zheng's family members returned 10,000 yuan of stolen goods on their behalf.
The People's Court of Mianyang Economic and Technological Development Zone passed the (2021) Sichuan 0793 Xingchu No. 10 judgment on February 14, 2022, finding that: 1. The defendant Peng was guilty of opening a casino and was sentenced to five years and seven months in prison. , and was fined RMB 12,000. 2. The defendant Zheng Moumou was guilty of opening a casino and was sentenced to five years and two months in prison and a fine of RMB 10,000. 3. The defendant Yang Moumou was convicted of opening a casino and was sentenced to five years in prison and fined RMB 10,000. 4. The illegal gains of 18,055 yuan of defendant Peng and 7,075 yuan of illegal gains of defendant Yang were recovered and turned over to the state treasury; 5. The three mobile phones seized were confiscated by the seizure authority. After the verdict was announced, Zheng and Peng appealed. Mianyang Intermediate People's Court issued (2022) Chuan 07 Xing Chu No. 85 Judgment on May 20, 2022: 1. Uphold the Sichuan Province Mianyang Economic and Technological Development Zone People's Court (2021) Chuan 0793 Criminal Judgment No. 10 Second to Item 5. 2. The first item of the criminal judgment No. 10 of Chuan 0793 Xingchu No. 2021 of the Mianyang Economic and Technological Development Zone People’s Court of Sichuan Province is revoked. 3. The appellant (defendant in the original trial) Peng was guilty of opening a casino and was sentenced to five years and three months in prison and fined RMB 12,000.

[Reasons for Judgment]

The effective judgment of the court held that the behavior of the defendant Peng and others All constitute the crime of opening a casino. Regarding the determination of the amount of gambling capital, the principle of objectivity should be adhered to. Online gambling betting should be understood from the essence of betting, that is, the calculation method for determining the cumulative amount of gambling capital must adhere to the principle of "consistency between subjectivity and objectivity." According to Article 5 of the "Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Handling of Cross-Border Gambling Criminal Cases" "If the crime of opening a casino is committed through the Internet, the amount of gambling capital can be determined according to the actual control account of the person who opened the casino. The amount of betting shall be determined in combination with other evidence; if statistics cannot be calculated, it may be determined based on the amount of funds actually gambled by verified casino personnel. For funds that are directly or indirectly exchanged for virtual currency, game props and other virtual items, and used as chips for betting "The amount of gambling capital shall be determined according to the amount of funds required to purchase the virtual item or the amount of funds actually paid", in accordance with the gambling rules and gambling time nodes and frequency pointed out by the statements of the gambling participants and the defendant's confession. Due to the long duration, , even if calculated based on the highest daily betting amount, it clearly exceeds the standard of 300,000 yuan. Under the same online gambling platform and the same gambling rules, if there are frequent transfers of income and expenditure and repeated rolling bets, the subjective and objective content of the gambling participants and defendants must be fully identified, that is, the "end of one gambling behavior" that both parties "innerly agree with", This is in line with the evaluation of "a complete act" in the sense of criminal law. Based on this case, based on the daily schedule and expenses, the subjective statements of the gambling participants and the defendant, the operating characteristics of the gambling platform, and the overall logic of the timeliness, shortness, and continuity of gambling, it was determined that the maximum daily bet amount of the gambling participants + The standard of "total winnings", as the "amount of accumulated gambling capital at one time", is closest to the nature of the crime in this case. Therefore, the court made the above judgment in accordance with the law.

[Referee’s Point]

In practice, the determination of the accumulation of gambling funds in online gambling should adhere to The principles of "according to crime and punishment" and "consistency between subjectivity and objectivity" cannot mechanically expand the "actual amount of funds paid" to mean "each transfer is deemed to be an actual payment of funds" and use this as " In the second item of Article 1, Paragraph 2, of the "Opinions on Several Issues Concerning the Application of Laws in Handling Online Gambling Criminal Cases", the amount of accumulated gambling capital is the amount of one-time funds." What’s more, the “actual amount of funds paid” cannot be narrowed down and understood as “the actual gambling capital as the amount of gambling capital”, and used as the “amount of accumulated gambling capital”.

(2) The case of Wang and others opening a casino - the establishment of a blind box game on the platform constitutes the crime of opening a casino

https://rmfyalk.court.gov.cn/dist/view/content.html?id=8xyvnhtkGlvniQac3CIpjd6Ba2Gk6DD90T6AW52OC%252BU%253D&lib=ck&qw=%E8%99%9A%E6% 8B%9F%E8%B4%A7%E5%B8%81

[Basic case facts]

In March 2022, the defendants Wang Moumou and Li Moumou discussed and began to prepare and build the "857skins" website (hereinafter referred to as the 857 website). The website began operations in June 2022. After registering and recharging on the website, players can exchange them into game coins at a 1:1 ratio to participate in gambling, and the game coins exchanged for recharge can only be used for gambling games and cannot directly go to the website mall to purchase props. The website has three gambling methods: "blind box", "lucky jewelry" and "group box". Players can obtain CSGO game props after participating in gambling games. The website will redeem the game props into mall coins through recycling. The mall coins obtained after the exchange can continue to play blind box opening and other gambling games on the platform, or purchase props on the website mall; Players can withdraw game props to their own steam accounts and trade them for cash on game asset trading platforms such as NetEase Buff. The website attracts players to gamble on the website by recruiting anchors for live broadcast promotion, sending CDK red envelopes, holiday benefits, etc. From the operation of the 857 website to the incident, players recharged a total of 50,046,374 yuan, players withdrawn props for 25,616,813 yuan, and the website made a profit of 24,429,561 yuan. Among them, Wang Moumou is a shareholder of 857 website, responsible for docking with Sifang Payment Company, docking technology, website operations, etc., and independently operates the V9 website, making a profit of more than 8 million yuan; Li Moumou is a shareholder of 857 website, responsible for promotion, customer service, website operations, etc. , making a profit of more than 5.6 million yuan.
The People's Court of Songyang County, Zhejiang Province issued a criminal judgment (2023) Zhejiang 1124 Xingchu No. 156 on December 11, 2023: The defendant Wang Moumou was guilty of opening a casino and was sentenced to five years and six months in prison. A fine of RMB 5.6 million was imposed; the defendant Li Moumou was convicted of opening a casino and was sentenced to five years and six months in prison and fined RMB 3.9 million. After the verdict was pronounced, there was no appeal or protest within the statutory time limit, and the verdict has taken legal effect.

[Reasons for Judgment]

The court’s effective judgment held that: the website involved used blind box opening to obtain CSGO game props are essentially gambling. The "blind box", "lucky jewelry", "group box" and other lottery activities operated by the website involved in the case of opening blind boxes to obtain CSGO game props actually provide players with small and large chances of winning. The winning results are determined by chance, which is a lucky shot. The behavior is gambling in nature. The website recycles the CSGO game props obtained by players by opening blind boxes and exchanges them into game currency to continue the cycle lottery on the platform. While consuming the game currency, it continues to increase the number and value of blind box openings. The platform mainly increases the value of the blind box by 7%. profit; and the blind box only contains icons of CSGO game props, and real CSGO game props are only provided when players leave the site to cash out. This is not a normal blind box marketing behavior, but a disguised gambling behavior. Therefore, the court of first instance made the above ruling in accordance with the law.

[Referee’s Points]

The operator sets up a blind box website and obtains it by opening the blind box Lottery activities with game props of varying values ​​actually provide players with a small chance of winning a large prize. The winning result is determined by chance, which is a lucky shot and has the nature of gambling. Players can realize the method of "paying investment-random drawing-giving up prizes to get discounted virtual currency-drawing boxes again" on the platform, which is gambling behavior. Platform operators provide a platform for gambling activities and make profits from the website platform, which constitutes the crime of opening a casino.

(3) The case of Weng Moumou opening a casino: the identification of "disguised profit making" in using an online chess and card platform to open a casino

https://rmfyalk.court.gov.cn/dist/view/content.html?id=JhXmrSocfsGm54zaxzG55kPPvfe9%252FyxBHBMiquBGPlU%253D&lib=ck&qw=%E8%99%9A%E6 %8B%9F%E5%B8%81

[Basic Case Facts]

2017 Around this time, the defendant Weng Moumou used the "Star Mahjong" App as a platform to open a WeChat mahjong group and attract people to join the group to play mahjong. Since the App requires the consumption of virtual game currency "diamonds" to open the "room" for gaming, Weng Moumou acted as an agent to sell "diamonds" on his own. From mid-January to March 2020, Weng established a new mahjong group and organized gamblers in the group to gamble within the "star mahjong" circle of relatives and friends he established. During this period, Weng Moumou made profits by selling self-agent "diamonds" to gamblers in the group by restricting the purchase channels for "diamonds" and formulating gambling rules that prohibit outsourced "diamonds" from being consumed within the group, and made illegal profits. 35,800 yuan. The above WeChat groups and circles of friends and relatives are all managed by Weng Moumou. Weng Moumou will publish group announcements on gambling rules, "diamond" consumption rules and "diamond" sales links in the WeChat group, and will assist group members to transfer gambling funds. , handle gambling disputes. It was also found that between December 2017 and October 2020, Weng Moumou made profits by selling "diamonds" to WeChat friends, and the amount of diamonds sold amounted to more than 178,000 yuan. On October 14, 2022, Weng Moumou was summoned by the public security organ. After arriving at the case, he truthfully confessed the above-mentioned facts, and retracted his confession during the trial. During the trial of this case, Weng's family returned the illegal income of RMB 20,000 on their behalf.
Shanghai Jinshan District People’s Court issued (2021) Shanghai 0116 Xingchu No. 248 Criminal Judgment on May 20, 2021: The defendant Weng Moumou was guilty of opening a casino and was sentenced to one year and two months in prison and fined Gold RMB 12,000. After the verdict was pronounced, the defendant Weng Moumou appealed. The Shanghai No. 1 Intermediate People's Court issued the (2021) Shanghai 01 Xingzhong No. 957 criminal ruling on June 29, 2021: the appeal was dismissed and the original judgment was upheld.

[Reasons for Judgment]

The effective judgment of the court held that: the defendant Weng Moumou used it for profit Opening a casino for this purpose constitutes the crime of opening a casino. If Weng Moumou shows that he has returned the stolen goods, he may be given a lighter punishment as appropriate. In response to the relevant excuses and defense opinions put forward by the defendant and defender, after investigation: First, regarding objective behavior, Weng Moumou used the "Star Mahjong" APP and related gambling groups to continue to organize others to participate in gambling activities for a long period of time. The number of gambling participants is large and not specific. They publish announcements on the virtual game currency "diamond" consumption rules, purchase links and other matters in the WeChat group, formulate gambling rules, and also have certain management behaviors for the collection and payment of gambling funds, which has a relatively obvious effect. organizational management. Second, regarding subjective perceptions, from mid-January to March 2020, Weng Moumou sold online chess and card game software to gambling participants in the group through limited purchase channels and consumption rules for virtual game currency "diamonds" Winning the "diamond" to "open a room" and collecting "room fees" in disguise to obtain illegal gains should be regarded as having the subjective intention to make illegal profits. Combined with his objective behavior, Weng should be found guilty of opening a casino. Third, regarding the determination of the amount of illegal profits, since gambling using online chess and card game software involves the conversion of virtual game currency and gambling funds, coupled with the diversity of gambling settlement methods in WeChat groups, it is difficult to calculate the settlement amounts in WeChat groups. The public prosecution agency Combined with Weng Moumou's WeChat, Alipay transaction records, bank card transaction details and other evidence to confirm, the evidence is sufficient and the relevant amount of the accusation should be supported. Fourth, Weng Moumou retracted his confession in court on the key facts of the case, which should not be regarded as a confession. Therefore, the court made the above ruling in accordance with the law.

[Referee’s Point]

Is the use of online applications to carry out chess and card activities and collect fees? The act of opening a casino to make profits in disguised form should be considered comprehensively based on the subjective cognition and objective behavior of the perpetrator. The perpetrator knew clearly that the gambling participants were using game applications for gambling, but still established WeChat groups and set gambling rules for them, continued to organize and manage an unspecified number of people within a certain period of time, gambled through online chess and card game software, and used restricted groups Any use of virtual game currency purchase channels, consumption rules, cash exchange rules, etc. to covertly collect fees from gambling participants and make illegal profits is a disguised form of profit-making and should be regarded as opening a casino for profit.