People's Court Daily: Criminal Law Characterization of Illegal Theft of Virtual Currency

(Author's unit: People's Court of Lianshui County, Jiangsu Province)

[Case]In early February 2023, the defendants Chen, Jing, Huang, Luo and others discussed and jointly invested, and agreed to use the contract code to steal USTD coins (Tether) to steal. At about 15:00 on March 20, 2023, the defendants Chen, Jing, Huang, and Luo went to the company of the victim Hu in a community in Lianshui County. Huang and Jing met with the victim Hu to scan the code. Chen was responsible for the background operation, and Luo was responsible for driving. Through the contract code purchased in advance, a total of 57,307.11 USTD coins of the victim Hu were stolen, with a value of RMB 393,665.461434. After the above-mentioned defendants traded some of the USTD coins, they illegally earned more than 240,000 yuan.
[Disagreement]In judicial practice, there are disputes over the characterization of the theft of Tether coins. Courts in different regions mainly hold the following views on the criminal characterization of stealing virtual currency. The first view is that the virtual currency obtained by the victim after paying the price is not only a virtual commodity, but also represents the property actually enjoyed by the victim in real life, which should be protected by the criminal law, and the theft behavior is characterized as theft; the second view is that virtual currency can only be protected as computer information system data, and should be characterized as the crime of illegally obtaining computer system data; the third view is that the theft behavior belongs to imaginary concurrence, and one act violates two crimes.
[Comment]The author agrees with the third view. Based on the facts of this case, the four defendants' actions violated the crime of illegally obtaining computer system data and the crime of theft, which belongs to imaginary concurrence. According to the principle of imaginary concurrence, the case should be determined as theft. The reasons are as follows:

1. Stealing virtual currency constitutes the crime of theft

The "Notice on Further Preventing and Dealing with the Risks of Virtual Currency Trading Speculation" issued on September 15, 2021 clearly stipulates that virtual currency does not have the same legal status as legal currency, and virtual currency-related business activities are illegal financial activities. The losses caused by this are borne by the virtual currency itself. However, the author believes that whether it is protected by law is not necessarily related to whether it has property attributes. The relevant regulations only deny its legal currency status, but do not deny the property attributes of virtual currency.
It is generally believed that as economic property, it must have value, including utility, scarcity and disposability. Scarcity is reflected in the fact that the total amount of virtual currency is constant and not infinitely supplied. Disposability is reflected in the fact that virtual currency uses asymmetric encryption technology, which exists in the "wallet" (ie address). After obtaining the address and private key, the virtual currency can be controlled. The utility is reflected in the fact that virtual currency, as a specific data code, must be generated through "mining", and "mining" condenses social abstract labor. In real life, virtual currency can be transferred and traded to obtain calculable economic benefits, and has use value and exchange value. Therefore, virtual currency has property attributes, and the defendant's theft of virtual currency constitutes the crime of theft.

Second, the act of stealing virtual currency constitutes the crime of illegally obtaining computer system data

The definition of "data" stipulated in Article 3, Paragraph 1 of the Data Security Law, which will come into effect on September 1, 2021, refers to "any record of information in electronic or other ways". Virtual currency is generated and exists in computer networks. In terms of technical attributes, it is a string of digital combinations in electronic form, and has the criminal law attributes of computer information system data. In this case, the defendant illegally stole the victim's Tether currency, and the contract code used was actually the defendant's means of obtaining management rights to the server by illegal means, invading the computer information system to obtain electronic data, and then transferring the possession of Tether currency. Therefore, virtual currency has data nature, and the illegal theft of virtual currency constitutes the crime of illegally obtaining computer system data.

III. Determination of the amount of stolen virtual currency

After determining that the theft of virtual currency is an imaginary competition between the crime of illegally obtaining computer system data and the crime of theft, the question of how to calculate the value of the virtual currency involved is faced. The author believes that since the price of virtual currency changes at any time, in practice, it should be objectively determined based on the principles of fairness, rationality and convenience. Since virtual currency is property, the illegal possession of other people's virtual currency constitutes a property crime, and the amount of loss of the victim is used as the amount involved, which is in line with the basic principle of calculating the amount of property crime. However, due to the supply and demand relationship and artificial speculation of virtual currency, its price will show a large increase or decrease in value. Therefore, it is more reasonable to calculate the amount of virtual currency involved in the case as the time when the defendant committed the crime rather than when the victim purchased the virtual currency. In this case, the exchange rate conversion price of the virtual currency on the overseas trading platform at the time of the crime should be used as the calculation basis.