At this point, the author also thinks that virtual currency has come to an end in China. However, related cases will remain high for some time to come. In the criminal defense work of related cases, we always avoid the identification of the "value" of virtual currency, and often need to prove the "value" of virtual currency involved and cross-examine its price appraisal.
Let's take Bitcoin as an example and talk about some ideas to prove its "value" source in the process of handling such cases.
1 Source of value-"* * * knowledge" and "trust"
Our currency history has experienced changes from physical currency to paper money and then to bookkeeping currency. What is the bookkeeping currency? It determines the ownership and transfer of money through digital records. In the era of mobile internet, we have long been used to leaving the physical wallet and only using the mobile phone to scan the code to pay. This convenience comes from the full application of bookkeeping currency. The mutual transfer between us is only the addition and subtraction of numbers in each other's bank accounts. The whole process is a bookkeeping process for both parties. This bookkeeping right is in the hands of the state and is the responsibility of banks, tripartite payment institutions and the central bank. The central bank has the national bookkeeping right, that is, centralized bookkeeping method. We think that paper money and these "numbers in mobile phones" have "value" because we trust the country, and it is the credit endorsement of the country behind these "numbers" that makes us realize that they have "value"
Similarly, gold is valuable because we have reached its "trust" as a currency in exchange for universal equivalents; The value of a diamond is also a "* * * understanding" of its scarcity and some symbolic significance behind it. Therefore, the essence of value is actually people's "* * * understanding" and "trust" of the value of a particular thing. If people don't have a * * * understanding of a thing, then many things that we think are "valuable" are actually not so "valuable" (including diamonds and paper money issued by the state).
However, paper money has a natural problem. No matter the French government in the Mississippi bubble period, or the American government and COVID-19 in the subprime mortgage crisis period, there will be uncontrolled over-currency phenomenon. Excessive currency and economic crisis often lead to inflation, and paper money will depreciate sharply. The reason why paper money depreciates is that people's "trust" in the currency issued by the government is greatly reduced, while their "understanding" of the "value" of commodities such as gold is improved, and then the price of gold rises. Bitcoin, the originator of virtual currency, was born in the United States in the late 2008 subprime mortgage crisis. In this context, it is designed as "decentralization" and "total amount unchanged" to solve the inflation problem of sovereign currency.
As people come into contact with "* * * knowledge" and generate "trust" based on this "decentralized" virtual currency, virtual currency generates "value". And as more and more people reach "* * * knowledge" and "trust" its "value", its price is also rising.
Take bitcoin as an example. When Satoshi Nakamoto dug up the first bitcoin market in June 5438+October 20091October, the market was very unfamiliar with this new thing and could not form a "* * * understanding" of its "value", so the price of bitcoin at this time was 0 dollars. 20 10 on may 22nd, American Laszlo bought a $25 pizza with 10000 bitcoin for the first time (Laszlo was also the first person to mine with a graphics card in the first bitcoin transaction), so its value became $0.0025. 2065438+April 2003, an economic crisis occurred in Cyprus, and local residents distrusted the rapidly depreciating Cyprus pound currency and rushed to buy Bitcoin, resulting in an 8.8-fold increase in the price of Bitcoin. In 2065,438+065,438+2003 10, when Bitcoin reached the peak of 8,000 RMB, five ministries and commissions in China issued the Notice on Preventing Bitcoin Risks, which severely hit people's "trust" in it and the price of Bitcoin fell sharply. Similarly, in 438+04, 2065, MTGox, the world's largest bitcoin trading platform, went bankrupt, which shocked people's confidence in it. Let its price fall into a bear market ... In addition, the workload proof, the * * * knowledge mechanism and the longest chain mechanism ensure that Bitcoin cannot be tampered with, and each coin can be traced back to the history of its birth and trading, with unforgeable characteristics. These characteristics also increase people's "* * * understanding" of its "value".
Therefore, the value of virtual currency is based on people's understanding and trust, and based on trust, it directly affects its price.
2 Source of value-"acquisition cost"
There are two ways to obtain virtual currency-"mining" and "trading".
Say "mine" first. Take bitcoin as an example. Its original output is produced by "miners" and "mining". Miners can be held by anyone anywhere in the world. "Mining" refers to the process that "miners" obtain specific solutions of equations through complex mathematical operations with the help of computer computing power. The first "miner" who gets a specific solution can get the bookkeeping right of the new "account book" and get a certain number of bitcoin rewards. The process of calculating this specific solution requires a lot of calculations, and Bitcoin has formulated a set of rules at the beginning of its design, and it needs to adjust its computing power every once in a while, which means that the difficulty of mining is also rising, and the cost (mainly hardware such as graphics cards) is greatly increased.
At the same time, with the increase of computing power required for mining, the difficulty of mining increases, and the probability that an individual can dig bitcoin becomes smaller and smaller, so a large-scale mine is gradually developed, that is, the computing power of more than N mining machines is aggregated to mine together, from a single mine to a mine or a mine pool. The cost of a mine includes: construction cost, equipment cost, maintenance cost (including store cost and labor cost), network cost, etc.
Marxist political economy holds that value is undifferentiated human labor condensed in commodities. Then the mining process of virtual currency also involves specific (artificial) "cost", which can be quantified as specific (virtual currency) commodity prices. As early as 2009, when Bitcoin was born, a user named "New Freedom Standard" introduced the method of calculating the price of Bitcoin through "production cost" in the early forum of Bitcoin. He believes that the calculation method of the value of a bitcoin should be: when the average power required for a computer to run for one year is 133 1.5 kW/ hour, the average electricity consumption cost of American residents in the previous year is multiplied by 0. 1 136 USD, and divided by1/.
As for the way to obtain the "transaction", whether it is a direct transaction of legal currency or a transaction after the legal currency is exchanged for virtual currency, as long as it can be freely exchanged for legal currency at a certain "exchange rate", there is a certain value behind it.
For example, we said in the article "Talking about the defense points of virtual currency fraud cases" that in practice, we need to distinguish the special currency among non-mainstream currencies, which is usually called mainstream currency (cottage currency). They have many similarities with mainstream currencies in technical mode, and all have their own real projects, all of which are based on the underlying technology of blockchain, all of which are realized according to the planning of their white papers. Common counterfeit currencies are EOS and BTM. For this kind of virtual currency involved. In the actual defense, it is important to prove that these virtual currencies meet the characteristics of liquidity and can be freely exchanged with mainstream coins or legal tender.
The fraud case of a virtual currency in Zhejiang, which we undertook the year before last, focused on collecting evidence to prove that it can be freely exchanged with Bitcoin on a foreign trading platform, that is, it proves that this non-mainstream "cottage currency" can be traded with mainstream virtual currencies such as Bitcoin and Ethereum, and finally it can become a ready-made legal tender, proving that it has property attributes.
In addition, virtual coins that fail to meet the above standards generally belong to air coins and pyramid schemes. Air coin, as its name implies, is that in actual development, there is no product or business landing, just an escaped coin, such as hero chain, superstar, space chain and so on. MLM coins are real money for pyramid schemes in the name of blockchain, such as the previously sensational Shenzhen Pu 'er coins. We also discussed the legal issues involved in MLM coins in the article "Talking about the defense points of virtual currency pyramid schemes".
Because the blockchain is cloaked in "new technology" and has virtual attributes, the judicial organs have long had serious misunderstandings in judging the authenticity of its value. We believe that the mainstream virtual currency represented by Bitcoin is decentralized, and there is no issuing government and authority to endorse the credit. The transaction price fluctuates greatly, and it does not have monetary attributes, so it is not suitable for use as currency. However, it is still a special commodity in essence and should be characterized as bearer securities, which is not only supported by the theory of real right in civil law, but also can be further interpreted as "property" as stipulated in Article 92 of the Criminal Law. Therefore, in view of this kind of online fraud, it is a strong argument against the crime of fraud to distinguish mainstream virtual currency from "counterfeit money" and mixed "coins" in circulation.
3 source of value-judicial determination
1, ten ministries and commissions notified that virtual currency-related activities were classified as illegal financial activities, which changed the direction of determining the validity of the "mining" contract in the current civil judgment. Although the identification of the property attribute of virtual currency is greatly influenced by the policy, it is still unclear.
In September, 20021,ten ministries and commissions jointly issued the Notice on Further Prevention and Disposal of Speculative Risks in Virtual Currency Trading, which completely and directly characterized virtual currency-related activities as illegal financial activities. Subsequently, Inner Mongolia, Yunnan, Anhui and other provinces and relevant institutions successively issued 12 regulatory policies to crack down on virtual currency mining transactions, which also changed the determination of the validity of "mining" contracts in many civil judgments.
Previously, in the judgment of Wang Tieliang v. Hobby. Com, Beijing Haidian Court held that there are no laws and regulations explicitly prohibiting the parties from investing in and trading Bitcoin, and the trading risks should be borne by the parties themselves. The contract concluded by both parties is valid, and the virtual currency transaction contract does not belong to the legal situation that the contract is invalid.
In the judgment of the online shopping contract dispute between Chen and Zhejiang Yibang Communication Technology Co., Ltd. in June 20 18, Hangzhou Internet Court also held that China's laws and administrative regulations did not prohibit the production, possession and legal circulation of Bitcoin, nor did they prohibit the transaction of Bitcoin "mining machines". Therefore, the plaintiff Chen Mou's claim that buying and selling bitcoin mining machines is illegal cannot be established, and the contract involved is legal and valid. Moreover, the buyer in the transaction does not belong to the consumer, is not subject to the adjustment of the Consumer Protection Law, and cannot apply the "seven-day return without reason" rule.
After the announcement of the ten ministries' notices, many court cases began to determine that the bitcoin "mining" contract was invalid based on the principle of "public order and good customs". For example, in the judgment of "Qin Company v. Yun Company Entrustment Contract Dispute Case", Beijing Dongcheng Court held that bitcoin belongs to a specific virtual commodity in nature and does not have the same legal status as currency. Bitcoin "mining" is essentially a venture capital activity that pursues the income of virtual goods, and investors must bear the relevant investment risks themselves; Judging from the behavioral effect, "mining" activities consume a lot of electricity and energy, and the daily average power consumption of many "mining machines" involved in the case is extremely high. Moreover, the production and trading links threaten the national financial security, and the risk of social stability is outstanding. It has become a speculative tool, which violates the spirit of the "green principle" of the Civil Code, belongs to the eliminated industry prohibited by administrative regulations, violates public order and good customs, and should be an invalid contract. From the perspective of responsibility burden, the policy risk, technical risk and investment loss risk caused by bitcoin mining activities should be borne by investors themselves. Since both parties are at fault for the invalidity of the contract, the consequences of relevant losses should also be borne by all parties.
At the same time, the identification of virtual currency by local courts is not clear.
In (20 18) Zhejiang1min zhong No.263, the court held that the virtual currency in this case could not and should not be used as currency in the market because it was not issued by the competent monetary authorities stipulated by China, and did not have the monetary attributes such as legal compensation and coercion, and did not have the same legal status as currency. Because the subject matter involved is illegal and the transaction of the subject matter involved is not protected by law, the contract involved is deemed invalid.
After the promulgation of the Civil Code in May 2020, many courts changed their previous attitude of not protecting virtual currency. Based on the requirements of the Civil Code for the protection of network virtual property, many courts have adopted effective judicial decisions on virtual currency contracts. For example, in May of 20021year, Jinan Intermediate People's Court recognized the property attribute of virtual currency with the number of (202 1) Lu 0 1 Min Zhong 3796. In this case, the court held that virtual currency has the characteristics of value, scarcity, disposability, etc., and has the characteristics of the object of rights, which conforms to the constitutive requirements of virtual property. According to Article 127 of the Civil Law of People's Republic of China (PRC), if the law has provisions on the protection of virtual property of data and network, those provisions shall prevail. Give legal protection to the legitimate virtual currency property rights and interests of citizens involved in the case.
Although the mainstream judgment rules are like this, judging from the national judgments in recent years, the criteria for judging the validity of virtual currency trading contracts are not uniform. The author believes that it is precisely because of the country's strict attitude towards virtual currency investment and frequently upgraded regulatory policies in recent years that judicial decisions will make completely different cases in a short time and publish them as typical cases. In the future, the people's courts will also reduce the protection of virtual currency property in virtual currency disputes and require citizens to bear the risks themselves.
2. Virtual currency belongs to "property" in the sense of criminal law and can be used as the object of property crime.
In judicial practice, although digital currency's property attribute is still controversial in the criminal field, as early as 20 17 in the announcement issued by seven ministries, Taizhou Intermediate People's Court decided in the judgment of (20 16) Zhejiang 10 that the victim Kim obtained bitcoin after paying the consideration, which was not only a specific kind, so the defendant stole the victim bitcoin through the Internet.
(2020) Guangdong 0304 criminal judgment No.2 thinks that Ethereum can't be used as currency in China, but as a kind of virtual property, its owner can manage, pay and transfer the currency in a specific way, and can openly trade with it, which has certain economic value and belongs to the "property" in criminal law.
Article 4 of 20 13 "Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft" stipulates that "stolen property with valid vouchers shall be identified as valid price vouchers", so the details of the change of the victim's account information can be authenticated through the token trading platform. In addition, there are bitcoin price appraisal conclusions issued by local price bureaus as the value basis in handling criminal cases, such as "Wu Theft Case" (20 16) Zhejiang 10 Punishment 1043, and the virtual currency price certificate issued by the Netan Corps of the Public Security Bureau, such as "Hu Zhikai's first-instance criminal judgment on theft case" (2066).
Therefore, in many criminal cases, virtual currency belongs to "property" in the sense of criminal law, which has "value" and can be used as the object of property crime.
Author | Xia Zheng, lawyer, master of Zhongnan University of Economics and Law, worked in procuratorates, government agencies and other departments. He has successively won the outstanding professional lawyers in Wuxi (criminal defense), the training target of famous lawyers in Wuxi (outstanding backbone lawyers), the outstanding lawyers team in Wuxi (20 16, 20 18, 2020) and the outstanding individual members of Wuxi Lawyers Association (20 18, 202/kloc-).