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Lawyer Xiao Wei: Hold Bitcoin legally, match the transaction or constitute an illegal business
Golden Finance Xiao Wei
onIs Bitcoin over-the-counter legal compliance?The issue has always been discussed in the industry, with the understanding of sister-in-law: out of the persistence of "blockchain technology" and the optimistic view of "passport future", the mentality of most participants and practitioners is pure optimism. In order to balance this blindness, we still want to talk about our own point of view from the perspective of the legal "red line", for reference only.
1 Treat differently, even issued as tolerated
In 2013, China clearly defined the legal attributes of Bitcoin itself:Specific virtual goodsThat is to say, similar weapons in online games, although unable to physically touch, recognize their status as "property".
The "General Principles of Civil Law" implemented on October 1, 2017 reconfirmed that virtual property is protected by Chinese laws. Since virtual property is legal, it is legal to have virtual goods in it (logical delay: mother collection is all A, mother The subset of parts of the collection is also A).
Based on,Having bitcoin is legal in my country.This is beyond doubt. However, can exchange be done? We believe that the exchange behavior between sporadic individuals and individuals is of course legal. The "ownership" in our country's law contains the important right of "disposition of power". How to dispose of it is the private right of the owner, and others have no right to interfere. However, if Bitcoin is regarded as a kind of financial product and it is used as a business, it is possible to carry out the act of combining and earning the difference. It may be suspected of breaking the law. Specifically, it maySuspected of criminal law Article 225 illegal business.
2 Is it illegal to operate in exchange for bitcoin?
It is true that our "legal red line" here refers to the criminal law. Since all methods of making big money are written in the criminal law, then let us see how the criminal law will restrict people's behavior.
The greatest feature of criminal law depriving people of their freedom and life is their modesty, that is, they do not appear at will, unless the behavior of a person (including a team) or a legal person touches the legal interests protected by criminal law. The legal benefit protected by the crime of illegal business isMarket economic order. Violation of national market economic management regulations, undermining the market economic order, and seriously jeopardizing the development of the market economy are not allowed (Zhang Mingxi, "Criminal Law").
From this we can see that the important premise of judging whether an act constitutes an illegal business operation is:Is there any violation of the corresponding economic management regulations?It is debatable whether the 1994 Announcement (ie, the "Announcement on Preventing the Risk of Subsidy Issuance of Financing") can be evaluated as a management law. We believe thatLower legal orderNot enough to be a prerequisite for imprisonment.
However, Ms. Yan communicated with other lawyers (former criminal judges) of the team. He believes that for criminal policy considerations, for some acts that exchange bitcoin for the industry, earning the difference, causing significant losses to the customer and causing serious consequences,can not rule outReported to the Supreme Court in accordance with Article 4 of Article 225 of the Criminal Law, “Other illegal business operations that seriously disrupt market order”, and finallyCase approvalThe form determines that a certain behavior constitutes a crime. As above, the legal consequences of such an act are uncertain, and the individual’s issuance is legal, and the act of the industry may be suspected of illegal business.
From the perspective of criminal risk prevention and control, we will suggest that certain “exchanges”, “platforms”, “communities”, etc. can be considered.Major legal risks of reaching the red lineIn China, the related business will be gradually reduced. At the same time, the procedural and substantive law counseling for key personnel of the team can not at least be proud of being blind.
3Other currencies, facing a more awkward situation
Observing the existing cases, the judicial authorities' attitude towards Bitcoin and Ethereum is relatively clear, that is, it is considered to be a specific virtual commodity in the law, and it is a "property" in the sense of criminal law.
However, for some other mainstream currencies or non-mainstream ICOs and STOs, the legal community’s understanding tends to be the same frequency, that is,Non-propertyThat is to say, in some cases, it may be considered as a crime of intrusion into a computer system or other data rights category.
With the legal person's understanding of similar business, it has also been loosened in the near future. The legal definition of various mining machines is relatively stable. In the case of currency-related cases, “illegal fund-raising” and “fraud” are also used for processing. Judging from the existing cases, in the case of introducing other people to buy coins, the incident of reporting a flag after the bear market plunged after the bear market was also recognized in some areas according to Article 266 of the Criminal Law.Fraud.
How to implement the project, or the "stubborn disease" of the blockchain application project, if it is the background of the currency circle, after engaging in virtual currency speculation, quantification, market making, publicity, sales, etc., it is likely to be considered illegal. There are even sorrows.
4Written at the end. . .
This article does not intend to identify which companies or teams are involved in the law, and simply conduct legal discussions on the behavior itself. We are also very confused. Can we give a "legal boundary" to the "frequency", "scale" and "degree" of OTC transactions?
After a legal incident, if the floor reports to the Supreme Act for a “case request,” they are acting on the market (information matching, direct counterparty, etc.)How to determine the natureWhether we will focus on the current situational policies and the legitimate rights and interests of financial consumers, we will wait and see.
It is still necessary to remind you of the idealisticists with feelings. In the currency circle and the chain, it is not enough to have a bloody look. Look down on the starry sky and look at the road under your feet. At least understand the common sense of law, know the legal process, not the heroic in the drama, the dog blood in the Hong Kong drama.
Be practical and put your dreams on the groundWith the monarch.
Editor in charge: Robot RF13015
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