Source: Lawyer Liu Honglin

The hot topics in recent times are basically around "the purchase and sale of virtual currencies may constitute illegal business crimes and "The crime of illegal trading of foreign exchange" was launched. As Mainland China now regulates the exchange between virtual currencies and legal tenders more and more strictly, withdrawing funds has become the most troublesome problem for existing friends in the currency circle.

I have told my friends in the currency circle more than once that playing with virtual currencies is not prohibited by Chinese law, but you have to worry about dirty money being involved in your withdrawal process, which will easily get your card frozen. After the hard work of the domestic police in the past two years, old leeks in the currency circle basically no longer use their domestic bank cards to withdraw funds. As an extension, another kind of business has come, which is often seen in the circle of friends. Go to various partners to sell a virtual currency bank card of a certain overseas bank card. Its function is to directly deposit USDT, but when spending, you can directly swipe the card to spend, or directly withdraw money from an overseas bank account; conversely, if What you deposit in its bank is a foreign currency account such as US dollars, which can also be directly converted into virtual currency in the bank account.

Then the question is, is it really legal for overseas licensed and compliant banks to carry out retail business in China for Chinese citizens? As a Chinese citizen, will the transfer and use of assets in this way constitute a breakthrough in foreign exchange management? Will the police come to your door? This is a good question. I will discuss it in a separate article later when I have the opportunity.

The main business of this article is to talk to you about the big risks in withdrawing money.

01 The crime of trust that everyone in the currency circle must know

In the eyes of players in the currency circle, they are just citizens who exchange their legally held virtual currency for RMB, but in the eyes of the police uncle, this is not the case. In the eyes of the people's police, this is called "help information" Cybercriminal activities”.

The data does not lie. Since the "Card Break" operation in October 2020, the number of cases prosecuted by the procuratorial organs for suspected crimes of aiding and trusting has increased rapidly, and it has now become the third largest crime in the number of criminal cases in China ( The first two are dangerous driving and theft respectively). Nearly 90% of those prosecuted have no criminal record. Those with a bachelor's degree or above and those with higher incomes from technology companies continue to increase in the number of criminal offenders. The main criminal activities include developing software and providing technical support. "The crime of trust" has now become the number one crime in the telecommunications network fraud criminal chain, playing an important role in the payment and settlement process.

The more common general method of committing the crime of helping to transfer money is: the upstream criminals find the bank card provider or the bank card information to be transferred in advance, and the perpetrator operates it himself or cooperates with others ( Traders) operate to provide transfer information (inform account number, password, cooperate with facial recognition, etc.), but most of the actors themselves are unable to provide basic information about upstream and downstream counterparties, and they are not clear about the use of funds.

The crime of aid and trust is stipulated in Article 287-2 of the "Criminal Law", and its subjective aspect is manifested as knowing knowledge, but what is knowing knowledge? Relevant judicial interpretations list 6 specific situations.

(1) Still carrying out relevant acts after being notified by the regulatory authorities;

(2) Failure to perform statutory management duties after receiving reports;

(3 ) The transaction price or method is obviously abnormal;

(4) Providing programs, tools or other technical support and assistance specifically for illegal crimes;

(5) Frequently using concealment Using measures such as surfing the Internet, encrypting communications, destroying data, or using false identities to evade supervision or avoid investigation;

(6) Provide technical support and assistance for others to evade supervision or avoid investigation;

Specifically in the currency circle, the more common situations are:

• Many bank cards After being frozen for the first time, he continued to buy and sell virtual currencies;

• In the market, he bought and sold virtual currencies at obviously abnormal prices;

• Lending one's real-name authenticated account on the exchange to help others trade or cash out;

• Accepting tasks in social groups such as Telegram groups to help others pay orders Get paid, etc.

• Wait, etc.

Perhaps Bing Xin Zui is taking the route of popularizing the law in large quantities and in the best way. The The maximum penalty set by the law is not high, it is a fixed-term imprisonment of less than three years. But don’t be happy yet. In many cases, the crime of helping others is combined with another crime called the crime of covering up, concealing criminal proceeds, and the crime of proceeds of crime (referred to as the crime of concealment). Itis the highest Ke Xiti was sentenced to seven years in prison.

According to the judicial interpretation of telecommunications fraud, the following situations will be investigated for criminal liability according to the crime of concealment.

(1) Repeatedly use or use multiple credit cards, fund payment settlement accounts opened with non-personal identity certificates, or repeatedly use abnormal means such as covering cameras and disguises to help others Transferring, cashing out, and withdrawing cash;

(2) After providing others with credit cards and fund payment and settlement accounts opened by non-identity proof, and then helping others to transfer, cash out, or withdraw cash ;

(3) Use or use multiple collection codes, online payment interfaces, etc. opened by non-identity certificates to help others transfer, cash out, and withdraw cash;

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Doesn’t it look somewhat similar to the crime of accomplice just listed? Yes. In judicial practice, it is easyto be confused between these two crimes. The phenomenon of "different verdicts for the same case" is quite common.

Take the two cases handled by the Mankiw team (both of which have been judged and taken effect, 2021 Shanghai 0115 Xingchu No. 4254, 2022 Shanghai 0107 Xingchu No. 773) as an example. The case circumstances are very similar, and the perpetrator will himself The bank card account number was provided to others for use, and I cooperated in scanning the code and entering the payment password. The perpetrator did not know the source or nature of the money involved. Regarding the transferred funds, only some of the funds were confirmed to have corresponding victims. One was sentenced to the crime of aiding and trusting, and the other was sentenced to the crime of concealment.

In criminal defense, as a lawyer, how to help criminal suspects reduce their criminal charges and increase the maximum sentence from seven years to three years is a technical job.

So from a pragmatic point of view, if you unfortunately commit a crime, the Public Security Procuratorate will say that it must be sentenced. As a client or as a criminal defense lawyer, the best choice may not be to just go Instead of pleading not guilty, you can consider pleading guilty as a misdemeanor from the perspective of accomplices and believers. According to the judicial interpretation of the crime of aiding and trusting, only a payment of more than 200,000 yuan can be convicted, and the sentencing range is only a fixed-term imprisonment of less than three years. The difficulty of conviction is higher than that of concealment.

02 Lawyer Mankiw suggested that

Many friends in the currency circle have their bank cards frozen and feel that they don’t have much in their cards. Money, or after communicating with the police once, they were yelled back and waited for notification. I thought it was no big deal, so I just left it alone, but this is the most dangerous time.

The reason is actually very simple. Your bank card is frozen because your deposit involves criminal proceeds. At this time, the police will think that you are suspected of being a criminal, but the evidence is not enough. At this time, for you It is said that it is the best time to prove your innocence and clear things up; if you wait for the police to advance the case, then the police may arrange it for you directly according to the help letter. At this time, it will be a complete criminal case. . From a matter that can be handled through simple communication to a serious criminal case, everyone needs to be able to figure out which is less serious and which is more serious.