What should I do after the cryptocurrency involved is seized during the period when it appreciates or depreciates?

Author: Lawyer Liu Zhengyao

In criminal cases involving virtual currency, most cases require judicial authorities to determine the amount involved. However, according to the current domestic regulatory policy for virtual currency, no institution is allowed to engage in pricing services for virtual currency transactions. Although judicial authorities are now in judicial practice The virtual currency involved is monetized by entrusting a third-party company to deal with it, but it is also more of a disposal after the court's judgment.

According to Lawyer Liu's practical experience, it is difficult to determine the value of the virtual currency involved in the case from the beginning in the criminal case procedure. So when the virtual currency involved in the case appreciates or depreciates in the entire criminal procedure, how should the court finally determine the value of the virtual currency involved in the case? The amount involved?

Lawyer Liu talks about this topic from three aspects: the high volatility of the value of virtual currency, the importance of determining the amount involved in criminal cases, and how to determine the amount involved in criminal cases involving virtual currency.

1. The high market volatility of virtual currencies

At the moment when Lawyer Liu was typing, the price of Bitcoin has fallen by $93,000. Although analyzing the price trend of the big cake is essentially a financial analysis, Lawyer Liu, as a legal worker, has too superficial financial knowledge; From a metaphysical perspective, it seems that there is still some persuasiveness: during the Spring Festival in China, the price of currency did not seem to be much higher.

(The currency circle on the sixth day of the Lunar New Year seems to be red. Although it reflects a certain traditional festive color, it is simply a terrible moment for friends in the currency circle)

The high volatility of prices is the basic feature of mainstream coins and non-mainstream coins (except for stable coins USDT, USDC, etc.), but friends who have a little "legal feeling" know that the most basic feature of the law is stability and hate "ADHD". "" ". The high volatility of the price of virtual currency will inevitably bring considerable trouble to the implementation of the law. For example, when a criminal case is filed by the public security organs, the seized virtual currency may only be worth RMB 1 million, but when the court makes a judgment, these virtual currencies are The price has climbed to RMB 10 million; or when a criminal case is filed, the market value of the seized virtual currency is 10 million, and the value of these coins has been zeroed at the time of court trial (this is a common situation in the currency circle).

If it is the former situation above, except for the suspect/defendant, his defense lawyer and family members are unhappy, everyone will be happy - for the victim, the refund is guaranteed, and for the public security, procuratorial and judicial departments, there is more motivation to handle the case. but the latter situation will be reversed: the suspect/defendant, as well as his defense attorney and family members, will be happy, and others will be uncomfortable, because for virtual currencies with zero value, it is likely that no longer constitute a criminal case.

2. Why is it important to determine the amount involved?

At present, most cases involving virtual currency are concentrated in the fields of economic crimes and crimes that hinder social management order (such as the crime of helping others). The important factor among the constituent elements of these crimes is the amount involved. For example, in general, the amount involved is lower than that of the case. 3,000 yuan does not constitute fraud or pyramid scheme crimes involving less than 2.5 million yuan, and cannot be sentenced to fixed-term imprisonment of more than five years (here is Lawyer Liu used the control variable method in the science and engineering experiment, and no other circumstances are considered).

In addition, for criminal cases, not only should the criminal filing stage of the public security be considered, but there will be two processes: the procuratorate and the court. A changeable amount involved will be like Schrödinger's cat, which makes prosecutors and judges who pursue high-quality handling of cases uneasy.

Therefore, a clear amount involved is crucial to the filing, review and prosecution, trial, and even subsequent execution of criminal cases.

3. What should I do after the appreciation/depreciation of the virtual

currency involved?

Through the above analysis, we know that in judicial practice, one thing that must be done is to clarify the amount involved in virtual currency criminal cases. How should we do it specifically?

At present, there are generally the following types of determination of the amount involved in a criminal case:

First, it is recognized by the price recognition center. According to the "Price Determination Conduct Code" of the National Development and Reform Commission, price recognition in criminal cases can be determined by price recognition agencies (i.e., price recognition centers in various places). The specific methods include: market method, cost method, income method, and expert consultation method. ; However, according to the provisions of "9.24 Notice" (Notice on Further Preventing and Disposing of Speculation Risks in Virtual Currency Transactions), my country currently does not allow any institution to provide pricing services for virtual currency transactions, so can the price recognition center be a virtual person involved in the case There is a great controversy about the price determination of currency. Lawyer Liu believes that the price determination center is not suitable for participating in the price determination of virtual currencies involved in the case;

The second is to refer to the market transaction price. At present, some judicial authorities will refer to the virtual currency transaction prices of mainstream virtual currency exchanges (using USDT as the pricing benchmark) to determine the price of virtual currency involved, such as the (2020) Guangdong 0304 Criminal First Instance No. 2 Criminal Judgment of Shenzhen Futian District Court (2020) Guangdong 0304 Criminal First Instance No. 2 Criminal Judgment of Shenzhen Futian District Court Li's theft case, but this practice has a flaw: my country currently does not allow virtual currency exchanges to provide services to mainland Chinese residents, so can judicial authorities use pricing services for overseas virtual currency exchanges as an exception? Of course, the lawyer believes that it is not possible;

The third is to determine the price in the price appraisal opinion and judicial appraisal opinion of third-party institutions. Although third-party appraisal institutions are different from the price recognition center with "official background", they are essentially still provided pricing services for virtual currencies by domestic third-party institutions, which is no essential difference from the pricing services of the price recognition center in the first model. , it is difficult to circumvent the prohibition provisions of "9.24 Notice". Especially the judicial appraisal agency determines the price of the virtual currency involved. This behavior itself has exceeded the scope of judicial appraisal. The judicial appraisal agency does not have the power and qualifications to determine the price of the virtual currency involved;

Fourth, it is determined based on the amount of the suspect/defendant's stolen goods or the amount of the victim's losses. Because my country does not prohibit virtual currency investment and transactions, whether it is a criminal case that requires the return of property (such as fraud or theft), or a criminal case that requires the confiscation of property involved (such as organizing or leading pyramid schemes, opening a casino, it is illegal (for business crime), if the suspect/defendant has sold the virtual currency involved in the case to cash out or has replaced other property, the amount of cash or the value of the property to be replaced can be used as the amount involved.

If it is difficult to calculate the amount of the suspect/defendant's stolen goods, but the amount of the victim's loss can be determined, the amount involved should be determined based on the amount of the victim's loss. This is because in determining the amount involved in a criminal case, there is a basic principle that is "the victim does not make a profit" principle (at the same time, it is necessary to take into account the principle of "benefiting the suspect when there is doubt"). If the virtual currency purchased by the victim for 10,000 yuan is stolen and the virtual currency has appreciated to 100,000 yuan when the court ruled, then the court should use 10,000 yuan as the amount involved; if the amount of the victim's loss cannot be found out? When (purchase amount), the market value of the virtual currency at the time of judgment can be considered as the amount involved.

Fourth, write at the end

The large fluctuations in the price of virtual currencies have led to the fact that in criminal cases, all parties involved in the litigation should pay attention to the value of the virtual currencies involved in the case. Even for stablecoins such as USDT and USDC, it cannot be taken for granted that their value can always be equivalent to US dollars. After all, no one can guarantee that TEDA or other centralized institutions will not go bankrupt. Therefore, it is necessary to determine the value of the virtual currency involved in a timely, accurate, legal and compliant manner, and properly handle the appreciation or depreciation of the virtual currency involved in the case during the seizure of criminal cases.

In current judicial practice, there is a mature plan to legally and compliantly monetize the judicial disposal of virtual currencies involved in the case, which is crucial to protect the legitimate rights and interests of victims, suspects/defendants in criminal cases.