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The key points of the defense of OTC in the currency circle suspected of helping crimes: the legality of OTC, the subjective intention of the crime



At present, the suspected crimes in the currency circle have attracted more and more attention from the case-handling agencies. As a link in the legal currency and digital currency transactions, the currency circle otc is easier to be found in the entire criminal chain and is at the front end of the entire case. Due to the limited understanding of the currency industry by the case-handling agency, otc merchants often know nothing about the law, resulting in poor information and poor cognition, resulting in "accidentally injured" otc merchants are no longer a minority. Therefore, in the defense of otc in the currency circle suspected of a crime of accreditation, it is necessary to focus on the legality of otc's behavior and whether the suspect has criminal intentions for innocence defense. Considering that it is a misdemeanor, you should make a defense of misdemeanor in combination with specific criminal circumstances, social harm, etc., and strive for non-prosecution and use of probation. At the same time, criminal reverse business such as property disposal and rights protection that are not involved in the case also runs through the defense work. The otc behavior in the currency circle is called "over-the-counter transaction" in the circle. Its essence is the exchange of legal currency and digital currency. , but because of the customary title-zce of "off-exchange trading", many misunderstandings have been caused by the case-handling authorities. Many case-handling personnel do not understand the currency industry and related laws, regulations and departmental rules. It is considered that otc's behavior is illegal and improper, so it is necessary to clarify the relevant legal regulation issues. One is that the behavior of individual merchant otc is legal. On September 4, 2017, seven ministries and commissions including the People's Bank of China jointly issued the "Announcement on Preventing Financing Risks of Token Issuance" by the People's Bank of China and other seven departments, which is called "94 Announcement" in the currency circle. The 94 Announcement clearly stated: “From the date of this announcement, any so-called token financing trading platform shall not engage in the exchange business between legal tender, tokens, and “virtual currency”.” The regulations stipulate that "the so-called token financing trading platform" shall not engage in the exchange business between legal currency and tokens, and "virtual currency", and it does not prohibit individuals from engaging in transactions between legal currency and virtual digital currency. At present, the mainstream civil adjudication point of view supports legal currency transactions between individuals, and at the same time recognizes that virtual digital currencies have property attributes. protected civil acts. BMEX has reached a strategic cooperation relationship with Coin Circle Zhiduoxing: According to official news, BMEX and Coin Circle Zhiduoxing have reached an in-depth strategic partnership, aiming to popularize more industry knowledge for contract traders and improve the overall quality of blockchain trading ecology. Coin Circle Zhiduoxing is a service organization focusing on the field of capital market transactions. It has a complete set of trading systems, through the accumulation of blockchain knowledge popularization, digital financial market analysis, strategic guidance and other knowledge. At present, Zhiduoxing in the currency circle has live broadcasts of knowledge teaching such as market analysis and strategy guidance in Jinse Finance. BMEX is a comprehensive service platform for digital assets, dedicated to providing users with safe and reliable digital asset transactions and asset management services. [2021/3/29 19:25:44] Second, the "off-market transactions" of individual otc merchants are legal. The so-called "on-exchange transaction" refers to the transaction between individuals and the trading platform, while "off-exchange transaction" refers to the transaction between individuals who are separated from the trading platform. What needs to be made clear is that there is no "floor transaction" in our country at all! Before the 94 announcement, individuals and trading platforms could engage in fiat currency transactions. For example, buyers who want to buy virtual digital currency only need to pay legal digital Huobi to the platform, and the trading platform will pay the corresponding virtual digital currency to the buyer. This is floor trading. Announcement 94 completely prohibits this kind of behavior, but it does not prohibit legal currency transactions between individuals. Therefore, after Announcement 94, trading platforms can no longer engage in legal currency transactions with individuals. The current trading platform generally adopts a matching mechanism. For example, if a buyer wants to buy virtual digital currency, the platform will "introduce" all sellers who want to sell virtual digital currency to the buyer. Transfer the money to the seller. After receiving the money, the online seller will confirm with the trading platform. After confirmation, the trading platform will put the seller's virtual digital currency into the buyer's "wallet". For example, from an offline point of view, the buyer gave the seller a sum of fiat currency; from an online point of view, the seller gave the buyer a sum of virtual digital currency, and the trading platform does not participate in the transaction during the whole process and does not charge any handling fees , In essence, the trading platform did not participate in it. Therefore, after the 94 announcement, the concept of "on-exchange trading" did not exist in China at all. There is no difference between individuals and individuals in "one hand for money, one hand for currency", so you must never take it for granted that otc's behavior is illegal as soon as you hear the word "off-market". Hong Kong Polytechnic University Chen Yibiao: Hong Kong’s regulatory measures are expected to make the chain circle and the currency circle healthy and harmonious: Golden Finance News, Hong Kong Polytechnic University School of Accounting and Finance Ph. Incorporating the virtual asset management business represented by digital currency into the regulatory scope does not mean eliminating or reducing risks—sandbox regulation itself is a risk prevention measure. As an investor, you still need to be in awe of investment risks! However, this approach adopted by Hong Kong regulators will undoubtedly make international capital more confident and active-zce in investing in China's blockchain projects and digital currency projects. Due to the existence of the Hong Kong capital market and regulated compliance platforms, the "currency circle" and the "chain circle" do not necessarily need to be separated and develop independently. Therefore, the most likely result in the future is: because of Hong Kong, the currency circle and the chain circle do not need to be decoupled, but go hand in hand. (Tsinghua Financial Review) [2020/3/16] Third, the behavior of individual otc merchants is necessary. "Coin speculation" is a legal act in our country. Since currency speculation involves legal currency transactions, both deposits and withdrawals are inseparable from individual otc merchants. Therefore, from this perspective, the existence of otc is very necessary. For legal OTC merchants should also be protected. The "Criminal Law Amendment (9)" added the crime of aiding information network criminal activities, which means providing Internet access, server hosting, network storage, communication transmission and other technical support for crimes knowingly committed by others using information networks, or providing advertising and promotion. Aiding behaviors such as payment and settlement are independently criminalized, and in the criminal law circle, the crime of aiding trust is regarded as the main crime of accomplices. The author believes that in the defense practice, the currency circle otc is involved in the crime of helping trust, which mainly involves the helping behavior of "payment and settlement". With the subjective intention of committing a crime, for the case handling agency, its preconceived presumption of guilt will lead to discrepancies between the confession of some suspects and the actual situation, or when induced, such as "I probably know that the source of these money is Unjustified” is a confession that the suspect thinks he is “nothing” but can actually be found to have criminal intentions subjectively. Therefore, the defender should defend that the suspect does not have criminal intent in light of the following specific circumstances. Voice | Yang Haipo: Most market makers in the currency circle do not create liquidity, they are just porters of liquidity: ViaBTC CEO Yang Haipo posted on Weibo that most market makers in the currency circle do not actually create liquidity, It's just a porter of liquidity, because the liquidity of most coins is currently scattered in multiple exchanges. A small number of market makers who have created liquidity are not simply providing liquidity in essence, but for the so-called market value management, which is essentially sitting on the bank. [2019/7/11] One is whether individual otc merchants have fulfilled enough kyc obligations. In the transaction process, an individual otc merchant should first clarify who the transaction object is. It is not enough to know who it is, and it is also necessary to determine whether the transaction person and the bank card holder are the same. In the practice of the currency circle, the method of video authentication is usually adopted, that is, the other party is required to hold an ID card and a bank card to record a video. The content-zce is usually "My name, ID card, and bank card are all owned by me, and the source of my funds is legal and legitimate. , and is willing to admit any legal responsibility”, through this method, individual otc merchants can determine the basic situation of the counterparty with which they are trading, and it should be considered that individual otc merchants have fulfilled their kyc obligations of prudence. After all, individual otc merchants are just ordinary individuals. Without the many inquiry systems of the judiciary, it is impossible to further verify the counterparty. The defender believes that if an individual otc merchant has fulfilled its kyc obligations and can provide relevant information about the other party during the investigation by the case-handling agency, it should be determined that there is no criminal intent subjectively. The second is whether the transaction price obviously violates the market conditions. Many case-handling agencies believe that the transaction price of individual otc merchants is often slightly higher than the market price during the transaction process, so they believe that individual otc merchants have criminal intent, which also reflects that the case-handling agencies do not have a deep enough understanding of the currency circle otc. First of all, there are also differences in the transaction price of legal currency on the trading platform. Taking the transaction price of legal currency in the Huobi app as an example when the author writes this article, the lowest price of usdt is 6.58 yuan, and the highest price is 6.61 yuan, with a difference of 0.03 yuan. With the gradual deepening of the crackdown on the "two cards" by the public security organs, the situation of fiat currency transactions in the currency circle being frozen has become more and more serious. Mainstream trading platforms such as the Huobi App have launched the so-called "Blue Shield merchants", that is, with a high degree of kyc certification, For merchants with good reputation, the price of such merchants will be more expensive, even RMB 0.05 higher than that of normal platform users. Therefore, the defender believes that as long as the transaction price does not obviously violate the market price, it cannot be determined that the criminal suspect has subjective intention because the transaction price is higher than the market price. Live|Dark Horse Quantification Sun Guannan: The difference between traditional finance and currency circle quantification lies in the different development stages and life cycles: Jinse Finance reported live on January 11. Today, at the "Give You 300 million At the offline meeting of the Global Quantification Competition, Tong Yang, Partner of Jinse Finance & CoinTime COO, hosted a roundtable discussion on "The Characteristics and Innovation of Digital Asset Quantification". Sun Guannan, founder of Dark Horse Quantification, said: Currency circle quantification does not talk about fundamentals. The only difference between traditional finance and currency circle quantification is the development stage and life cycle. The quantification of the currency circle is mainly because the regular army does not come in. Once the regular army comes in, the quantitative yield will plummet. The current so-called liquidity problem is that the coins of retail investors do not participate in market transactions. I believe that with the emergence of some financial products in the currency circle, this problem will be well resolved. [2019/1/11] The vast majority of individual otc merchants are mainly engaged in the "inverted U" business, that is, they buy usdt with RMB at a price slightly lower than the trading platform, and then at a price slightly higher than the trading platform Selling usdt at a price, this process is called "inverting u", and what you actually earn is the price difference of a few cents between buying and selling. The author has represented some otc in the currency circle suspected of crimes of aiding trust, covering up, and concealing criminal proceeds. The transaction price of some otc merchants is a few cents or more higher than the market price. It is difficult for the court to accept the excuse of not knowing the illegality of the other party’s source of funds. After all, a normal otc merchant should know the market conditions, and a normal counterparty cannot “send money” for no reason. Many investigators believe that since they can match deals on the trading platform, why do they need to find OTC merchants outside the market, thinking that OTC merchants have criminal intentions? In fact, to a large extent, this is also a helpless move by the currency circle. Through digital currency transactions, the current fiat currency transactions, especially the process of digital currency exchange for RMB, the phenomenon of frozen cards is extremely common. Some people have counted that the rate of frozen cards is above 30%, which is a very exaggerated figure. , not to be easily frozen, you can only find more familiar and reliable otc merchants outside the market for transactions. Even if the prices of these otc merchants are slightly higher than the prices on the trading platform, you can only choose this option for safety. After all, if there is a cheap Reliable merchants, who would choose more expensive ones? Therefore, if the transaction price does not seriously violate the market conditions, it cannot be determined that individual otc merchants have criminal intent subjectively because of the slight deviation between the transaction price and the market conditions. Voice | Zhang Shaohua: The currency circle should be an incentive mechanism generated by the chain circle rather than an attack force: news on June 29, recently, the technology of the chain circle and the currency circle was sponsored by CCF YOCSEF Shanghai and undertaken by the School of Computer Science and Technology of Shanghai University of Electric Power. A national special report meeting on application and application was held in Shanghai Electric Power College. Zhang Shaohua, Secretary of the Party Branch of Shanghai Computer Software Technology Development Center, made a special report entitled "Scenes and Pitfalls of Blockchain Technology Application", and gave a vivid explanation of the concept and six characteristics of blockchain. He believes that the chain circle is mainly to solve the application scenario, and the currency circle should be the incentive mechanism generated by the chain circle, not the attack power. [2018/6/29] The third is to check whether the transfer bank card of the other party is necessary. Take the sale of usdt as an example. As an individual otc merchant, in addition to the transaction price, the most concerned thing is whether the source of the other party’s money is legal, and whether the transaction will cause you to be frozen. Therefore, the vast majority of individual otc merchants are most afraid of The only thing is to receive black money. At present, the common trading habit in the industry is to ask the other party to provide bank transaction records. If the transaction records are less than one month, usually the transaction will not continue. Only the transaction flow is not enough, and the other party needs to use the bank card to transfer money to their own WeChat, and then use WeChat to withdraw money to the bank card to prove that this card is a "live card", and at the same time to identify the other party's WeChat Whether there is an abnormality in the signal, only when all the above-mentioned hidden dangers of transactions are eliminated, can individual otc merchants dare to continue fiat currency transactions. If the criminal suspect has performed all the above-mentioned tasks, how can it be determined that he has the subjective intention of collecting black money? How can it be considered that it subjectively has the act of providing payment and settlement for criminal acts? Fourth, the size of the transaction amount has nothing to do with whether there is subjective intent. Many case investigators believe that personal otc merchants’ transaction amounts are too large, and there is subjective intent. In essence, the currency circle is a relatively closed circle, among which there are many players who hold huge amounts of virtual currency assets, and there are many "ten thousand coins". You must know that the value of 10,000 bitcoins is about 3 billion yuan. Buying mining machines , pay electricity bills, pay employees, etc., all need to convert a large amount of virtual digital currency into RMB, and large-value transactions widely exist in the currency circle otc, so the size of the transaction amount cannot be used as one of the factors to determine that the criminal suspect has subjective criminal intent One.


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