Criminal Regulations On Illegally Obtaining Other's Bitcoins

To prevent financial risks,China's financial regulatory agencies are prohibiting Bitcoin trading platforms and ICO platforms,prohibiting financial institutions and payment institutions from conducting business related to Bitcoin,and explicitly denying the currency attributes of Bitcoin.However,individuals are not prohibited from holding and trading Bitcoin,and Bitcoin is regarded as a specific virtual commodity on the Internet and private financial asset,and ordinary people have the freedom to participate.The creative operating mechanism and technical means of Bitcoin make it uniquely different from electronic money and traditional virtual currency.Electronic money is another form of legal tender.It is the electronicization of legal tender,while Bitcoin is different from electronic currency.Bitcoin is not issued by the central bank,nor is it the electronic form of legal tender.According to the flow direction between virtual currency and real currency,virtual currency can be divided into closed scheme,one-way circulation scheme and two-way circulation scheme.Two-way circulation scheme indicates that users can buy and sell virtual currency in real money according to the exchange rate,and can use such virtual currency to purchase virtual or real goods and services.Bitcoin belongs to this kind of two-way circulation scheme virtual currency.Bitcoin is significantly different from online game virtual currency.As faras the nature of rights is concerned,online game virtual currency is the credit and debt relationship formed between online game users and online game enterprises based on online game service agreements,while Bitcoin does not have creditor-debtor relationship;In value recognition,the value of online game virtual currency basically depends on the will of the online game enterprise,that is,the issuer,and the value of the decentralized Bitcoin changes with the change of market supply and demand;in terms of scope of use,online game virtual currency is only limited to the purchase of related goods or services in a specific online game,and the use of Bitcoin is not specific,can be used for any application that accepts Bitcoin payment.Computer data is the existence form of Bitcoin.Data is only the most intuitive and simplest judgment of Bitcoin.Data attributes can only be called technical attribute of Bitcoin rather than legal attribute.Bitcoin can be regarded as some unregistered electronic security,which can be included in the scope of property in criminal law,and also conforms to the attributes of property in criminal law,and thus possessing property attributes in criminal law.When judging the legal attributes of Bitcoin,we shall focus on the specific legal benefits of the representation on the data,focusing on the functional role of Bitcoin.Therefore,the legal attribute of Bitcoin is property.There are three ways to illegally obtain other's Bitcoins.Firstly,theft,including logging into other's trading platform or Bitcoin wallet to modify the Bitcoin receiving address,or selling Bitcoins in other's trading platform accounts or Bitcoin wallet for profit,or modifying program code to steal Bitcoin.Secondly,extortion,including asking someone to pay Bitcoin to get rid of virus attack or blackmailing others for Bitcoin on the grounds of leaking relevant information.Thirdly,fraud,including fabricating a fact or a trading platform or phishing to defrauding others of Bitcoin.The criminal identification of the illegal obtaining of other's Bitcoin in practice is divided into property crime regulation and computer crime regulation.The reason is largely due to the fact that new virtual currencies such as Bitcoin have both computer data attributes and property attributes,and many people choose to use computer crimes at this stage based on conservative evaluation of its property attributes.Themain arguments for computer crime regulation include,firstly,Bitcoin belongs to the broad category of virtual property,and the legal attribute of virtual property is computer information system data,so the relevant law of computer crimes can be applied.Secondly,interpreting Bitcoin as "public and private property" goes beyond the possible meaning of criminal law terms.Thirdly,the value of Bitcoin is difficult to identify,so it is not feasible to include it in property crimes.The main arguments for property crime regulation include,firstly,the virtual form of Bitcoin does not represent the virtual value but represents the real property of the user.Secondly,incorporating Bitcoin into property crime from the perspective of criminal law interpretation.Thirdly,if Bitcoin cannot be identified as property,it will cause other criminal legal problems.This paper believes that the path of computer crime regulation has following unreasonable points: firstly,the legal attribute of Bitcoin is not data but property,data is only the technical attribute of Bitcoin;secondly,the criminal object of illegally obtaining the behavior of Bitcoin by others may not be criminal objects that comply with computer crimes.When the perpetrator illegally obtains other's Bitcoins,it does not necessarily infringe the security of computer system.The normal operation of Bitcoin network is not destroyed,and it does not disturb the public order,but violates the private rights of the victim.Thirdly,illegal obtaining other's Bitcoin may not be in line with the objective constituent elements of related computer crimes;fourthly,computer crime regulation may lead to incompatibility of crimes and punishments.This paper agrees with the path of property crime regulation.Interpreting Bitcoin as "other properties" in Article 92 of the Criminal Law,thereby incorporating Bitcoin into the object of property crime,not only conforms to the current orientation of criminal law interpretation,but also does not exceed the range and meaning boundaries of criminal law,and does not exceed the national prediction possibility.Afterwards,it is proposed that the method of determining the value of Bitcoin should be issued as soon as possible to provide operational guidelines.When it comes to the specific identification of the illegal acquisition of otherpeople's Bitcoin,firstly,in the determination of the completion of crime,the principle of exclusive domination and control of Bitcoin shall be adopted.See if the suspect has exclusive access to the private key of the victim's Bitcoin.When the suspect obtains the victim's only private key,the crime is completed.Otherwise,when the suspect sells other's Bitcoin or transfers other' Bitcoin to their accounts or change the receiving address of the extracted Bitcoin to their own address,the crime is completed.Secondly,in terms of the determination of the amount of crime,as Bitcoin has similar attributes of securities,and the suspect can immediately resale to redeem property interests on Bitcoin after the illegal acquisition,the victim cannot report the loss of Bitcoin to avoid losses,so Bitcoin can be considered as an unregistered electronic security to calculate the amount of crime.The value of the convertible property on the Bitcoin,that is,the market price of the Bitcoin,can be used as the criterion for determining the amount of the crime.The market price of the Bitcoin shall be based on the average market price of the Bitcoin in a certain period to guarantee the fairness of sentencing.When the suspect illegally obtains Bitcoin in the trading platform,the amount of the crime shall be determined by multiplying the average transaction price within the previous month of the trading platform when the infringement occurs,by the number of Bitcoins involved.When the suspect illegally obtains Bitcoin in the non-trading platform,such as stealing Bitcoin in the Bitcoin wallet of the victim,the amount of the crime shall be determined by the average market price of many large trading platforms within one month when the theft occurs.Thirdly,in terms of the number of crimes,when the perpetrator illegally obtains other's Bitcoins through the means of computer crime,if the perpetrator subjectively runs through a final criminal purpose,that is,the purpose of illegally acquiring other people's Bitcoin,and the means and behavior of computer crime are consistent with the corresponding crime,then it should constitute an implicated offense,and a heavier punishment should be imposed.