What should be the crime for the three hundred million police who broke the warehouse?

According to reports from the self-media, Gao, a senior executive of a blockchain security company, lost 300 million by shorting Bitcoin, and the source of the 300 million was the digital assets seized by the police in many places in handling illegal fund-raising cases. Digital assets kept or realized by a blockchain security company.

If the above revelations are true, what crimes might be involved in the liquidation of police assets through contract operations? What legal issues are involved?

According to the revelations, the digital assets in the above-mentioned incidents were seized by the police in the investigation of illegal fund-raising cases, and the police handed them over to blockchain security companies for safekeeping (it is also said to be "entrusted to realize"), then the laws of these assets What about attributes?

According to Article 2 of the "Several Provisions on the Management of Property Involved in Cases by Public Security Organs" (hereinafter referred to as the "Regulations"), the term "properties involved in cases" as mentioned in these regulations refers to the property that the public security organs have taken to seal up or detain in accordance with the law in the process of handling criminal cases and administrative cases. Items, documents and funds related to the case received from other units and individuals, including: (1) Illegal and criminal proceeds (2) tools used to commit illegal and criminal acts;...

The 24-hour contract market liquidated more than 255 million US dollars. The BTC contract liquidated 201 million US dollars: According to the contract market statistics report, the total network liquidation of the contract market in the past 24 hours was 255 million US dollars, and the number of people liquidated was 19,894. Among them, Huobi lost $33.17 million, OKEx lost $21.03 million, BitMEX lost $14.93 million, Binance lost $105 million, and Bybit lost $80.79 million. The top three currencies with the amount of liquidation are BTC with $201 million, ETH with $26.25 million, and XRP with $8.22 million. [2021/2/18 17:27:18]

Therefore, the digital assets in this incident belong to the "properties involved" defined in the above-mentioned "Regulations" according to law, and are subject to the regulation and management of the above-mentioned "Regulations".

Article 4 of the regulations further clarifies that the management of property involved in the case by the public security organs must be carried out strictly in accordance with the law. No unit or individual shall embezzle, embezzle, privately divide, exchange, withhold, spend, damage, or dispose of property involved in the case without authorization. In this incident, Gao's actions definitely violated the aforementioned regulations.

In the last 30 minutes, the contract market liquidated 12.2 million USD and BTC liquidated 6.54 million USD: According to the contract market statistics report: in the last 30 minutes, the contract market has a total liquidation of 12.2 million USD, of which BTC liquidated 6.54 million USD and BSV liquidated $560,000. [2021/1/27 21:47:43]

From the perspective of the stage of the case: if the case is in the investigation stage, this part of the digital assets belongs to the property involved in the case, and is still in a state of unclear qualitative. This is because in the investigation stage, the criminal suspect has not yet been tried by the court to determine the charges, and the corresponding assets also need to be characterized and disposed of accordingly after the effective judgment of the court. That is to say, the identification and disposal of property involved in a criminal case, and the issue of conviction and sentencing are the same objects of judgment in the court's criminal trial. In the criminal judgment, the court should make a clear judgment conclusion on the property involved in the criminal case.

From the perspective of the nature of the case: On the one hand, according to the current common practice, the court generally confiscates and turns over the property involved in the case of "organizing and leading pyramid selling activities" to the state treasury. (The author believes that in many cases of funds in the currency circle, the crime of organizing and leading pyramid schemes is used to convict, and the property involved in the case is confiscated, which is quite controversial, such as the Plustoken case.) According to this processing method, these assets are generally When the case is closed, it must be confiscated from the state treasury, and it belongs to the state property according to law.

In the last 5 minutes, the contract market liquidated $5.26 million and BTC liquidated $3.65 million: According to the contract market statistics report, the contract market has a total liquidation of $526 in the last 5 minutes, including $3.65 million in BTC and $151 in ETH. Ten thousand U.S. dollars. [2020/10/18]

On the other hand, if an illegal fund-raising case is characterized as the crime of illegally absorbing public deposits or fund-raising fraud, according to the current common practice, the court will generally rule that this part of the property be returned to the victim. In this case, these assets ultimately belong to the investor.

So is it impossible to punish Gao for his criminal behavior before the cases involved in these digital assets are qualitative? the answer is negative.

According to the second paragraph of Article 91 of the "Criminal Law" of our country, private property in the management, use or transportation of state organs, state-owned companies, enterprises, collective enterprises and people's organizations is considered public property. That is to say, the digital assets that blockchain security companies are currently entrusted to manage by the public security, even if these properties belong to private property, are also drafted as "public property" by the criminal law.

In the last 5 minutes, the contract market liquidated 17.28 million US dollars and BTC liquidated 16.04 million US dollars: According to the contract market statistics report: in the last 5 minutes, the contract market has a total liquidation of 17.28 million US dollars, including 16.04 million US dollars of BTC liquidation and ETH liquidation $891,300. [2020/9/25]

We have noticed that some articles have fallen into a misunderstanding when discussing this issue, that is, focusing on the ownership of the digital assets involved in the case, and then judging the crimes involved. Although the logic is rigorous, everyone knows that it has fallen into the misunderstanding of civil law thinking.

In fact, as far as acquired property crimes are concerned, the underlying logic of criminal law and civil law is different. Civil law emphasizes the protection of ownership and possession, while criminal law only emphasizes the legal interests of possession of property, basically ignoring the issue of property ownership. For example, if the property stolen by A is stolen by B, the civil law denies that A has the right to claim the return of the original property against B, because A does not enjoy the ownership of the property. However, the criminal law will still protect A's legal interests of possession, and believe that B constitutes the crime of theft, because B has illegally transferred the possession of property.

In other words, ownership of property is irrelevant. The criminal law only considers the conceptual possessor of the property, and protects the possession relationship from being changed without legal procedures. Therefore, it is not necessary to discuss the ownership of the digital assets involved in the case, not to mention that the second paragraph of Article 91 of the "Criminal Law" has made a provision for fiction. The public security organ entrusts the blockchain security company to manage the digital assets involved in the case, and the public security organ as the superior is still managing and possessing the property in custody, which should be recognized as public property according to law.

Dynamic | BTC's intraday high reached 10,000 US dollars, and the entire network's contract liquidation exceeded 24.44 million US dollars in 1 hour: According to the market data of the contract king, BTC's intraday increase exceeded 1.66%, and the spot price reached a maximum of 10,000 US dollars. The 1-hour network-wide BTC contract liquidation Over 24.44 million US dollars, the current BTC contract positions on the entire network still maintain a high level of more than 3 billion US dollars, and continue to rise in the short term. [2020/2/9]

Based on the foregoing conclusions, Gao may be involved in the following charges:

1. Misappropriation of funds

According to some self-media revelations, part of Gao's behavior was to embezzle the digital assets entrusted by the company to be kept by the public security to carry out currency speculation activities, so the essence of his behavior is to embezzle "public property", and he does not have the purpose of illegal possession subjectively , is an act of misappropriation, which should constitute a crime of misappropriation according to law.

According to the provisions of my country's Criminal Law on the crime of embezzlement of public funds, the subject of the crime of embezzlement of public funds can only be a state employee, and Gao's identity is only an executive of a blockchain security company.

According to the "Reply of the Supreme People's Court on How to Convict the Misappropriation of State-owned Funds by Entrusted Management and Management Personnel" (adopted at the 1099th meeting of the Judicial Committee of the Supreme People's Court on February 13, 2000): Where a company, enterprise, public institution, or people's organization entrusts a non-state employee to manage or operate state-owned property, taking advantage of his position, to misappropriate state-owned funds for personal use and constitute a crime, he shall be punished in accordance with Article 272 of the Criminal Law. The provisions of the first paragraph of the conviction and punishment.

In other words, Gao's behavior was suspected of "misappropriation of funds". According to the amount of 300 million and it is difficult for Gao to return this part of the property, he is likely to face more than seven years in prison. (This is the conclusion of the Criminal Law Amendment (Eleventh). If the behavior involved in the case occurred before March 1 this year, the previous legal provisions should apply, that is, more than three years but less than ten years.)

2. Corruption

If Mr. Gao uses his position to embezzle, steal, defraud or illegally occupy state-owned property by other means, such as taking measures such as balancing accounts, making false accounts, and destroying accounts after misappropriation, making it difficult for the misappropriated digital assets to be reflected in the accounts , and not returned, in this case, in accordance with the provisions of the second paragraph of Article 382 of the "Criminal Law" of our country: those entrusted by state organs, state-owned companies, enterprises, public institutions, and people's organizations to manage and operate state-owned property Personnel who take advantage of their positions to embezzle, steal, defraud or illegally occupy state-owned property by other means shall be regarded as embezzlement.

In addition, it is also mentioned in the third paragraph of this article that those who collude with the persons listed in the previous two paragraphs to commit corruption shall be punished as accomplices. That is to say, if Gao's behavior is not just a personal behavior, if other company personnel participate in and conspire with the above-mentioned behavior, it will be regarded as an accomplice in the crime of embezzlement.

In terms of sentencing, if it is difficult to return this part of the property according to the amount of 300 million and Gao Mou, according to the provisions of the criminal law, if the amount of corruption is particularly huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of more than ten years or life imprisonment, and shall also be fined or Confiscation of property; if the amount is extremely huge and causes particularly heavy losses to the interests of the country and the people, the sentence is life imprisonment or death, and the property shall be confiscated.

According to the author's aforementioned analysis, if the case to which this part of digital assets belongs is finally convicted of the crime of illegally absorbing public deposits or fund-raising fraud, then this part of digital assets needs to be returned to investors according to law. The current situation is that there is a high probability that Gao will not be able to return this part of the digital assets, so who can investors claim for damages?

According to the fourth paragraph of Article 7 of my country's "National Compensation Law", "If an organization or individual entrusted by an administrative organ violates the legitimate rights and interests of citizens, legal persons, or other organizations when exercising the entrusted administrative power and causes damage, the entrusted administrative organ shall compensate Obligatory organ." That is to say, if the above-mentioned conviction and sentencing are followed, the investor can, after the judgment becomes effective, file a claim for state compensation with the public security organ as the respondent (compensation obligatory organ) and request the public security organ to compensate for losses.

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