Author: Zeng Jie; Source: Financial Crime Defense Diary

Introduction:

This ordinary administrative penalty case has caused two major misunderstandings. The first misunderstanding is that many people misunderstand it as the "first case" in which the public security officially defines the illegal trading of virtual currencies by citizens; the second misunderstanding is that the definition of illegal income in this case exceeds the scope of the "Administrative Punishment Law". The 90,000 yuan income from currency speculation should not be confiscated.

Text:

According to media reports, a certain local public security team punished a team that used circumvention software to speculate in currency arbitrage. Specifically: Zhang San’s team engaged in In the virtual currency arbitrage business, circumvention software is used daily, so the local police Based on the violation of my country's "Interim Regulations on the Management of International Networking of Computer Information Networks", he was punished, including the confiscation of relevant Internet tools, a fine of 15,000 yuan, and the confiscation of illegal gains (profits from currency speculation) of 90,000 yuan.

The focus of the question is whether the profit of 90,000 yuan is illegal income from circumventing the Internet wall?

Note that the focus of the question is what kind of illegal income the 90,000 yuan is, not whether currency speculation is an illegal act. However, Lawyer Zeng noticed that many people believed that this was the first case in which the police determined that currency speculation was illegal, and used it as a "sensational" benchmark. This is a big fallacy.

Of course, this case involves multiple legal aspects of analysis.

1. Analysis of the nature of the currency speculation and arbitrage business

The virtual currency arbitrage business engaged in by Zhang San’s team is essentially a method of utilizing the relationship between different trading platforms. The nature of this behavior is to prohibit the operation of relevant exchanges based on price differences for profit, but it does not prohibit individual holding and personal trading by citizens. Therefore, it is definitely not possible that Zhang San’s team was punished for engaging in virtual currency trading arbitrage, so the basis for the punishment does not exist. The reason why Zhang San was punished was that he used illegal circumvention software to access the international Internet.

2. Analysis of the behavior of using circumvention software

Violation of laws and regulations: In our country, without the approval of the telecommunications authorities, you are not allowed to establish or lease dedicated lines (including virtual private lines) Network VPN) and other channels to carry out cross-border business activities. According to Article 6 of the "Interim Regulations on the Management of International Networking of Computer Information Networks", "Computer information networks must use the international entrance and exit channels provided by public telecommunications networks for direct international networking. No unit or individual is allowed toEstablish or use other channels for international networking. ” and Article 14 “Anyone who violates the provisions of Articles 6, 8 and 10 of these Regulations shall be ordered by the public security to stop networking, given a warning, and may be fined not more than 15,000 yuan; if there are any illegal gains, the illegal gains shall be confiscated income. ”

3. Is this administrative penalty case uncontroversial?

For this case, There is no dispute that Zhang San was punished for illegally accessing the Internet. However, the focus of the question is whether the confiscated 90,000 yuan is illegal income from "censoring the Internet"

From a nature point of view, this income is actually not directly related to the Internet circumvention itself.

Different from criminal penalties, this type of public security violation The incident is a matter that is directly determined and punished by the public security, and the decision on punishment in criminal cases is subject to the judgment of the People's Court. Therefore, the concept of illegal income in this case must strictly refer to the provisions of the "Administrative Punishment Law", which Article 28 stipulates that “illegal gains refer to money obtained from committing illegal acts. ”

Zhang San's team illegally connected to the Internet, which is an illegal act, and its illegal income is directly contributed to this illegal act. For example, Zhang San uses an illegal VPN and will receive relevant time rewards. This reward is because The illegal gains obtained from committing illegal acts are directly related to each other. In this case, Zhang The three teams’ profit of 90,000 yuan from currency speculation was their income from virtual currency trading arbitrage, rather than the income from unauthorized use of illegal channels for international networking (circuiting the wall). There is no direct connection between the behavior of circumventing the wall and their profit-making behavior from currency speculation. Related, unless Zhang San’s team received a 90,000 yuan reward for circumventing the wall, in which case the two are directly related.

If income that is not directly related is counted as illegal income, it means that all income through circumvention software belongs to the sequence that can be directly confiscated by the public security. For example, Li Si used circumvention Wall Software sells legal real estate in its own name overseas, and all profits from overseas stock trading, investments, etc. can be confiscated. This obviously goes beyond the scope of legal principles and common sense.

4. One case, two misunderstandings.

This ordinary administrative penalty case has caused two major misunderstandings. The first misunderstanding is that many people misunderstand it as the "first case" in which the public security officially defines the illegal trading of virtual currency by citizens. This is obviously It is because he was too excited that he was confused; the second misunderstanding is the definition of illegal income in this case., beyond the scope of the "Administrative Penalty Law", 90,000 yuan should not be confiscated.