Criminal characterization of the act of using virtual currency to settle illegal funds

【Introduction】

Virtual currency is based on modern information technology and cryptography, and is a highly electronic electromagnetic data generated through complex algorithms. Because of its characteristics of anonymity, decentralization, and global circulation, it is widely used in the fields of settlement and transfer of illegal funds. The use of virtual currency for settlement and transfer of illegally obtained funds has seriously hindered the judiciary's detection and investigation of criminal crimes. The parties involved in the settlement behavior may also be involved in criminal crimes such as money laundering, concealment crimes, and trust crimes because of their behavior. In practice, there have been controversies over the criminal nature of using virtual currency to settle illegal funds, focusing on the distinction between the crime of helping trust and the crime of concealment. This article will combine the nature of virtual currency to discuss the criminal nature of settlement behavior, so as to help combat cybercrime , to achieve precise conviction and sentencing.

1. Proposal of the **** question—the practical qualitative dispute of using virtual currency to settle illegal funds

At present, the use of virtual currency for settlement and transfer of illegal funds has the characteristics of a large number of people involved, various behavior methods, and huge settlement funds. Behavior methods include but are not limited to: lending personal accounts, swiping orders, and using the running score platform to transfer and other operations. Among them, the running sub-platform has become the main way to use virtual currency to settle and transfer funds, and it is increasingly affecting the normal financial circulation pattern of the Internet. The use of virtual currency to settle illegal funds generally involves three crimes, namely the crime of money laundering, the crime of covering up, concealing criminal proceeds, and the crime of assisting information network criminal activities. First, for the crime of money laundering, if the funds transferred and settled by the predicate crime belong to the proceeds of the seven special crimes stipulated in Article 191 of the Criminal Law and the proceeds generated, the crime of money laundering should be applied according to the principle that the special is superior to the general , there is no dispute here. Second, the main difference in practice is that the proceeds of the predicate crime come from the crimes of concealment and accreditation involved in addition to the seven crimes. In courts in different regions, the same kind of settlement behavior, such as helping to transfer money after providing a bank account, is punished as two crimes, which leads to unclear characterization of the behavior and different penalties. Maintain the authority of the judiciary.

Second, **** Discussion and Controversy - Causes of Practical Disputes

Practice has not yet formed a unified standard for the determination of the use of virtual currency to settle illegal funds, mainly for the following three reasons: First, virtual currency is unique, illegal in China and difficult to supervise due to decentralization, and the use of virtual currency to settle funds is essentially On the one hand, it takes advantage of its superiority over general legal tenders; on the other hand, at present, there are various behaviors of using virtual currency to settle funds, and for different behaviors, the social harm is also different, so the court will consider the influence of settlement behavior on fund transfer. Thirdly, both the crime of concealment and the crime of accreditation with payment and settlement can deal with the behavior of downstream actors using the Internet to help settle the upstream crime. one situation. The above three points will be explained in detail below.

(1) Various ways of using virtual currency to settle illegal funds

According to statistics, in practice, the use of virtual currency for settlement and transfer of illegal funds includes simple lending of bank card accounts, helping false virtual currency exchanges, participating in the purchase and sale of orders, and using the running points platform to collect funds for others to earn commissions, etc. In terms of social harm and subjective viciousness, the behavior of simply providing a bank card for a fee and personally participating in the transfer and settlement of funds after providing it is certainly different. instance of sin. Therefore, different styles of settlement behaviors are one of the reasons for the different charges.

(2) The use of virtual currency to settle illegal funds is of a special nature

The essence of using virtual currency to settle funds is to use the anonymity, global circulation and difficulty of supervision of virtual currency to escape the legal investigation of the predicate crime. The principle is that, first of all, the threshold for registering a virtual currency account is low and does not reflect the identifiable personal characteristics of the account owner. Therefore, there is a wide range of people who can register an account to participate in virtual currency trading. Secondly, based on the global circulation of Internet information technology, account owners can easily cross geographical restrictions, trade virtual currencies on a global scale, and transfer criminal proceeds overseas, making it difficult for regulatory authorities to investigate and deal with them. Finally, as a currency issued by non-management authorities, virtual currencies are often separated from the central financial management system, so the whereabouts of funds can be concealed through multi-handed transactions. But in fact, virtual currency mainly relies on blockchain technology, and blockchain technology is a product of the development of information technology. Worldwide anti-money laundering cooperation is constantly being carried out, the dynamic banking supervision system is constantly improving, and blockchain companies assist Under the background of the widespread adoption of case handling, it becomes easier to trace the source of virtual currency. In this case, the perpetrators use the Internet to transfer illegal funds is indeed helping the crime, but has it played a role in covering up and concealing? This is also an important argument for the distinction between the two charges in the following article.

(3) The elements of payment and settlement crime of accreditation and cover-up crime overlap

The crime of aiding information network criminal activities is punished when a natural person or unit knowingly knows that others use the information network to commit crimes, and provides technical support such as Internet access, server hosting, network storage, and communication transmission for the crime, or provides assistance such as advertising promotion, payment settlement, etc. , serious behavior. It can be seen from this that there are various ways of behavior in the objective aspect of the crime of helping information cybercrime activities, which can cover almost all the help methods needed by cybercrime, and use "etc" to cover the bottom line to prevent omissions. Therefore, this charge is likely to overlap with other charges in the criminal law, such as the crime of covering up and concealing criminal proceeds. Specifically, the crime of concealment mainly regulates the behavior of concealing stolen money and hindering investigation, which is mainly manifested in the transfer of stolen money through various means of payment and settlement. On the basis of the full use of the Internet, more and more criminals choose to use The above-mentioned purpose is achieved through network means, so there is overlap between the two crimes.

**Third, **Defense and key points - it is more reasonable to characterize it as a crime of helping information network crimes

Defining the criminal nature of using virtual currency to settle illegal funds is of great significance. It can determine a unified standard of conviction for practice and is conducive to the implementation of the principle of legally prescribed crimes and penalties. Combining the characteristics of virtual currency and the similarities and differences between the two crimes, the author believes that regardless of the behavior of using virtual currency to settle illegal funds, it should be classified as a crime of aiding information network crimes. As for the social harmfulness of the behavior, it should be considered when sentencing. The following will expand the detailed discussion.

(1) The similarities and differences between the crime of concealment and the crime of accreditation

As mentioned above, due to the wide range of objective behaviors of the crime of trust and trust, and the increasing number of cases in which criminals choose to transfer stolen money through the Internet in practice, there is an overlap between the two crimes in dealing with the use of virtual currency to settle illegal funds. However, there are still big differences between the two crimes, mainly as follows: First, aiding information network crimes generally occurs during the criminal activities of the predicate crimes, and is an auxiliary means of the predicate crimes, while concealing and concealing criminal proceeds occurs in the predicate crimes. After the completion, it is an act of helping after the fact. If you participate in it beforehand, you may be identified as an accomplice of the predicate crime. Second, the two crimes are located in different chapters. The crime of accreditation violates the order of network management, while the crime of concealment infringes on the normal crackdown activities of the judiciary against crimes; third, the objects of payment and settlement in the crime of accreditation include other and network Crime-related funds, the scope is greater than the proceeds of crime and its proceeds in the crime of concealment. Fourth, the crime of accreditation and the crime of cover-up have different requirements for the identification of subjective knowledge. The crime of accreditation only needs to subjectively know that the upstream criminal may have criminal facts, and the difficulty of proof is lower than that of the crime of concealment. To sum up, it can be seen that there is no need to set up two identical crimes in the criminal law. There is still a big difference in the specific application of the crime of concealment and the crime of helping trust, but due to the development of Internet payment and settlement services, there is overlap in this part, so It is necessary to discuss which crime should be applied to the use of virtual currency to settle illegally obtained funds.

(2) The reasons and reasons why the crime of accreditation is superior to the crime of concealment

The crime of covering up and concealing criminal proceeds is mainly aimed at other criminals who have no complicity in the crime before the event and help sell the stolen goods afterwards. With the development of information technology, crimes such as financial fraud and online gambling emerge in an endless stream, and the criminal proceeds of suspects will also be hidden by the concealment and complexity of the Internet. In practice, it is generally believed that virtual currency has the characteristics of anonymity and decentralization. Therefore, the perpetrator helps others to settle funds by providing virtual currency accounts, assisting virtual currency withdrawals, and assisting virtual currency off-site transactions. evade legal action. However, the author believes that comprehensively considering the nature of the crime of concealment and the particularity of virtual currency, the settlement behavior is more focused on helping the implementation of cybercrime rather than simply evading detection afterwards, and helping the emergence of crimes of information cybercrime, which makes this behavior have a corresponding crime regulations.

1. Considered from proceeds of crime

The crime of concealment requires the perpetrator to conceal the proceeds of crime and its proceeds, which refers to the stolen money and stolen goods directly obtained by the perpetrator through crime. However, combined with the actual crime, the upstream criminals generated a large amount of capital transactions when committing crimes, including not only stolen money and stolen goods, but even property used by the crime itself, such as gambling funds. This has led to the fact that when downstream actors accept instructions to trade virtual currencies, the funds transferred also include the property used by the crime itself and the proceeds of crime. The former is beyond the scope of the regulation of concealment crimes. The payment and settlement referred to in the crime of gang letter includes "fund transfer service", that is, monetary payment and fund settlement. Therefore, the object of payment and settlement of this crime is relatively broad, and any payment settlement that provides assistance to criminals can be evaluated as this crime, which includes not only "stolen money and stolen goods" but also property used for crimes, etc. Sin is more rational.

2. Determination from the time of crime

When discussing the difference between the two crimes, it has been explained that the crime of concealment mainly punishes the act of helping after the fact, and can only be constituted after the completion of the predicate crime, while the crime of accreditation does not have this requirement. In cybercrimes involving property, it is generally deemed that the crime is completed when the upstream criminal actually controls the property. However, most of the crimes of telecommunications and network fraud and online gambling that occur frequently in practice are not accomplished after the direct implementation of harmful acts. A certain amount of profit is required in the early stage to lure the victim to increase investment. As far as the crime of gambling is concerned, there is even a situation where gambling funds and profits are mixed up, so it is more appropriate to use the crime of helping information network criminal activities to investigate.

3. Start with the adaptation of upstream and downstream crimes

The crime of concealment is easy to incriminate, and if the circumstances are serious, the upgraded sentence is too high, which may easily cause the sentencing of upstream and downstream crimes to be unsuitable. Taking the illegal operation of foreign exchange as an example, the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Illegal Fund Payment and Settlement Business and Illegal Trading of Foreign Exchange If the illegal business operation is more than 5 million yuan or the amount of illegal gains is more than 100,000 yuan, it shall be determined that the circumstances of the illegal business operation are serious.” If the circumstances of the illegal business operation crime are serious, the statutory penalty is fixed-term imprisonment of not more than five years or criminal detention, and concurrently or A single fine of not less than one time but not more than five times the illegal income. However, according to Article 3 (1) of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Concerning Concealment and Concealment of Criminal Proceeds and Proceeds of Crime, which was revised in 2011, "concealment and concealment of criminal proceeds and the value of the proceeds If the total amount reaches more than 100,000 yuan," the circumstances are serious, and the applicable legal penalty is fixed-term imprisonment of three to seven years. In practice, the involved virtual currency is generally converted into RMB to calculate the amount of the crime. That is to say, if a person uses virtual currency to help criminals who illegally operate foreign exchange to settle funds, the criminal involved in the crime will have to illegally operate 5 million yuan. The above constitutes a crime, but the perpetrators who have not participated in the previous one may be sentenced to a higher statutory penalty just because they engage in post-settling behaviors with less subjective malignancy. However, according to the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Illegal Use of Information Networks and Assistance in Information Network Criminal Activities, "payment and settlement amount of more than 200,000 yuan" constitutes "serious circumstances" and applies to basic A sentence of less than three years is more reasonable.

4. Research on the introduction of policies and application background from the crime of gang trust

The crime of accreditation was implemented after the promulgation of the "Criminal Law Amendment (9)", which was introduced to combat the increasingly rampant telecommunication and cybercrime. Since the "broken card" operation in October 2020, the procuratorate's prosecution of suspected crimes of helping trust has increased rapidly, and it has now become the third most prosecuted crime among various criminal crimes (the first two are dangerous driving, theft, etc.) crime). Yu Haisong, Director of the Criminal Division of the Research Office of the Supreme People's Court, recently published the article "Comprehensive Solutions to Difficult Issues in the Application of the Law of Helping Crimes", mentioning that the current cybercrime helping behavior presents the characteristics of one-to-many, detailed division of labor, and great social harm. However, due to the lack of a clear principal offender, it is difficult to be directly identified as a joint crime. Therefore, the application of the crime of accreditation proposes (1) the behavior of the aided object in the crime of accreditation must constitute a crime, but the "crime" stipulated here is understood as a related crime (2) "Crime" shall refer to behaviors that should be punished according to the specific provisions of the Criminal Law, including behaviors that conform to the types of behavior stipulated in the specific provisions of the Criminal Law but have not yet constituted crimes. (3) The determination of subjective "knowledge" should not be interpreted as a generalized possibility cognition, but should be limited to a relatively specific cognition, which should be presumed through judicial interpretation. At the same time, it emphasizes the need to prevent the improper application of the crime of accreditation and effectively promote social governance. It can be seen that the introduction of the crime of helping trust has been able to solve the online payment settlement assistance behavior in practice. If the crime of concealment is insisted on, it will not only lead to mechanical incrimination, but also the application of the crime of helping trust in the form of payment and settlement will not be realized. Good legal governance effect.

**Fourth, **Conclusion

Based on the summary of judicial practice experience, the author raised the issue of different charges for using virtual currency to settle illegally obtained funds. With the in-depth exploration of the problem orientation, the author found that the main reason for the different judicial practice standards is the particularity of the virtual currency used in this act and with the development of the Internet, the crime of trust and concealment overlap in the field of online payment and settlement. After demonstrating the similarities and differences between the two crimes, and in-depth discussion of the nature of using virtual currency to settle illegal funds, the author believes that based on the timing of the crime, the proceeds of crime, and the adaptation of the crime and punishment, it is more reasonable to identify such acts as crimes of aiding information network criminal activities.