小心场外交易变洗钱犯罪​——评上海长宁检察院《涉虚拟货币洗钱行为的司法认定》

On, this year, China prosecutor WeChat official account published an article on the judicial identification of a mystery involving virtual currency money laundering, which was written by two prosecutors of Changning District Procuratorate, Shanghai. It introduced a very common case in virtual currency transactions, in which typical over-the-counter transactions were identified as concealing crimes. Lawyer Liu wrote this article to make a brief analysis, and at the same time, it was also a risk warning for friends who were doing business. What did the business involved do? Xiaomou met one on the telegram. The name of the boss of Paofen Group is Big Shanghai. After cashing the fraudulent funds through Cannon, Xiaomou was found to buy TEDA coins. Xiaomou bought them in large quantities off-site at a price higher than that of the exchange, and then increased the price to sell them to the big Shanghai prosecutor. At the time of writing, he also carefully proposed the details of the transaction between Xiaomou and Big Shanghai. For example, when the two sides traded offline, Xiaomou would first count the cash on the spot and then transfer it to the wallet address of Big Shanghai. When Shanghai confirmed that it was received, it would ensure the smooth and safe trading channels. Xiaomou then transferred the rest to the time of the crime. Xiaomou earned a total of more than yuan, and was finally sentenced to years of imprisonment by the court to cover up the crime. There are two different opinions about whether the difference between two businesses constitutes a crime. Xiaomou's behavior belongs to a typical case of earning a difference between businesses but not doing it, which eventually led to being arrested. Although the profit is only 1,000 yuan, it seems that this amount is really embarrassing to take out in the currency circle, but there are two different opinions about whether Xiaomou's behavior constitutes a crime. That is, innocent and guilty. The innocent faction thinks that Xiao did not know subjectively that the cash taken out by Shanghai was stolen money. Those who did not know were innocent. In addition, Xiao traded with Shanghai in virtual currency, and whether virtual currency can be used as a criminal tool or an object of crime is still controversial in China. The guilty faction advocates that Xiao obviously constitutes a crime of money laundering, and it should be specifically recognized that Xiao's behavior offended by concealing crimes has an obvious intention of evading investigation. For example, the frequency of communication transactions with encryption software is higher than the market price. It can be inferred that he knows that the money in Shanghai is coming from the wrong source. In addition, the virtual currency has economic value and belongs to the criminal object or criminal tool in the criminal law. In this case, Xiao's crime is to cover up the crime of concealing the crime, which needs to be concealed, transferred and purchased for sale. So for the majority of business friends, do you know the funds involved in each transaction? Whether it is the proceeds of crime is very important. There are at least two ways for the judicial organs to investigate whether the parties know it. One is direct interrogation, which is legal and compliant, and the other is illegal interrogation. As long as the interrogated person admits that he knows that the funds of the counterparty are the proceeds of crime, the subjective factors that the parties know are basically settled in the current judicial practice. As for whether the transcripts made by the parties who are lured into confession and cheating confession can be excluded, it depends on whether the parties can take them. Give evidence to prove that you have been lured and cheated. Second, you are presumed to know, that is, even if the parties themselves don't admit that they know that no matter how the police interrogate the parties, they are iron-headed, then the judicial organs will verify from other aspects whether the parties know that, for example, there is no justifiable reason to assist in the conversion or transfer of property through illegal means. Second, there is no justifiable reason to buy property at a price significantly lower than the market. Third, there is no justifiable reason to assist in the conversion or transfer of property, which is obviously higher than the market. Handling fee 4. Assisting others to deposit huge amounts of cash in multiple bank accounts or frequently transfer them between different bank accounts 5. Assisting close relatives or other people with close ties to convert or transfer property that is obviously inconsistent with their occupation or property status. Once the parties are presumed by the judicial organs to know that the counterparty's funds are the proceeds of crime, they still trade with them, then the parties are not far from the crimes of helping the letter, concealing the crime and money laundering. Greater Shanghai, which is known to the veteran virtual currency traders by telegraph, still deliberately bypasses the more mature virtual currency trading places, adopts hidden software to contact hidden locations to collect the money from the other party, and then credits the received money into the other party's account in the form of virtual currency and charges a handling fee higher than the market. The behavior attributes are obvious, such as helping the other party to launder money and concealing the proceeds of crime. Four conclusions: Nowadays, the life of business is getting more and more difficult, and it is originally a gray city. With the increasingly fierce competition in the market, the profit margin has been continuously compressed. Now, the judiciary has begun to pay close attention to every move of the merchants, and if they are not careful, they will be punished to serve the future road. Whether it is the end of the thorns or the steep cliffs is endless, it is hard for Liu to say, but for the majority of merchants, it seems that they can still persist in tinkering with the road at their feet for a while. As for how to mend it, it is to refer to Xiao Mou's doing the opposite. The handling fee for using domestic communication software should not be significantly higher than that of the exchange to make a good counterparty. 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