Kou Gaoming Cun Ji Meng

Author's unit: People's Court of Lianshui County, Jiangsu Province

< p style="text-align: left;">[Case Facts] In early February 2023, the defendants Chen, Jing, Huang, Luo and others discussed and jointly contributed money to the defendants Huang, Luo and others, and agreed to use the contract code Steal by stealing USTD coins (Tether coins). At about 15:00 on March 20, 2023, the defendants Chen Moumou, Jing Moumou, Huang Moumou, and Luo Moumou went to the company where the victim Hu Moumou was located in a community in Lianshui County. Meet and scan the QR code, Chen was responsible for back-end operations and Luo was responsible for driving. Through the contract code purchased in advance, a total of 57307.11 USTD coins of the victim Hu were stolen, worth RMB 393665.461434. Later, the above-mentioned defendant traded some USTD coins and gained illegal income of more than 240,000 yuan. [Disagreements] In judicial practice, there are disputes over the characterization of the theft of Tether coins. Courts in different regions mainly hold the following views on the criminal nature of the theft of virtual currencies. The first view is that the virtual currency obtained by the victim after paying a price is not only a virtual commodity, but also represents the property that the victim actually enjoys in real life. It should be protected by criminal law and the theft is classified as the crime of theft; the second view is that virtual currency Currency can only be protected as computer information system data and should be classified as a crime of illegally obtaining computer system data; the third view is that theft is an act of imaginary competition, and one act violates two crimes. [Commentary] The author agrees with the third view. Based on the facts of this case, the actions of the four defendants respectively violated the crime of illegally obtaining computer system data and the crime of theft. They are imaginary concurrences. According to the principle of choosing a felony penalty based on imaginary concurrences, this case should be deemed as theft. crime. The reasons are as follows: 1. The act of stealing virtual currency constitutes the crime of theft

"Notice on Further Preventing and Dealing with the Risks of Speculation in Virtual Currency Transactions" issued on September 15, 2021 》Clearly stipulates that virtual currency does not have the same legal status as legal currency, and virtual currency-related business activities are illegal financial activities, and the resulting losses shall be borne by themselves. However, the author believes that whether it is protected by law is not necessarily related to whether it has property attributes. The relevant regulations only deny its legal currency status, but do not deny the property attributes of virtual currency. It is generally believed that as an economic property, it must have value, including utility, scarcity and disposability. Scarcity is reflected in the fact that the total amount of virtual currency is constant and cannot be infinitely supplied. Disposability is reflected in the fact that virtual currency uses asymmetric encryption technology, which is stored in a "wallet" (i.e. address). After obtaining the address and private key, the virtual currency can be controlled. Utility is reflected in the fact that virtual currency, as a specific data encoding, must go through "mining"" can be generated, and "mining" condenses social abstract labor. In real life, virtual currency can be transferred and traded to obtain calculable economic benefits, and has use value and exchange value. Therefore, virtual currency has property attributes, The defendant's stealing of virtual currency constitutes the crime of theft.

2. The stealing of virtual currency constitutes the crime of illegally obtaining computer system data

"Data" as stipulated in Article 3, Paragraph 1 of the Data Security Law, which will be implemented on September 1, 2021, refers to the definition of "any record of information in electronic or other means". Virtual currencies are generated and exist on computers In terms of technical attributes, the network is a string of digital combinations that exist in electronic form, and it has the criminal law attributes of computer information system data. In this case, the defendant was illegal. The contract code used to steal the victim's Tether coins was actually a means by which the defendant used illegal means to gain management rights over the server, invade the computer information system to obtain electronic data, and then transfer the possession of the Tether coins. Therefore, the virtual currency has data properties and is illegal. The act of stealing virtual currency constitutes the crime of illegally obtaining computer system data.

3. Determination of the amount of virtual currency stolen

After determining that the theft of virtual currency is an imaginary combination of the crime of illegally obtaining computer system data and the crime of theft, we are faced with the problem of how to calculate the value of the virtual currency involved. The author believes that since the price of virtual currency changes at any time, fairness should be upheld in practice Since virtual currency is regarded as property, illegal possession of other people’s virtual currency constitutes a property crime, the amount of the victim’s loss shall be used as the basis. It is the amount involved in the case, which complies with the basic principles of calculating the amount of property crimes. However, due to the supply and demand relationship of virtual currency and artificial speculation factors, its price will show a significant increase or depreciation. Therefore, the calculation of the amount of virtual currency involved is determined by the defendant. It is more reasonable that the exchange rate of the virtual currency on the overseas trading platform at the time of the crime should be used as the basis for calculation in this case.