Introduction:
The so-called illegal foreign exchange business crime is a crime that involves illegal buying and selling of foreign exchange to obtain illegal profits and infringes on the country's foreign exchange management system. The most important judicial interpretation of this type of crime at present is the 2019 Supreme Law Judicial Interpretation on Handling Illegal Payment Settlement and Foreign Exchange Cases. A distinctive feature of this crime is that the object of business is "foreign exchange", and virtual currency is called a "currency", but according to our country's definition, it is only a "virtual commodity" and is neither a currency nor a currency. It is not a payment certificate or security, so the purchase and sale of virtual currencies cannot be defined as the purchase and sale of foreign exchange.
However, does the trading of virtual currencies have nothing to do with the crime of illegal foreign exchange operations?
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For example, when Zhang San conducts personal virtual currency transactions, he sells a large amount of USDT he holds to Li Si, and Li Si pays the RMB consideration to Zhang San. In fact, Li Si is an "underground bank" operator specializing in helping others illegally settle and sell foreign exchange. The RMB used by Li Si to purchase USDT actually came from Li Si's customers for exchange funds. For example, Li Si helped his client Wang Wu purchase foreign exchange. After Li Si exchanged Wang Wu's RMB for virtual currency, he converted the virtual currency into foreign exchange through an exchange or other channels, and then remitted the foreign exchange to Wang Wu's designated foreign currency account. As a result, Li Si completed RMB-foreign exchange exchange services for Wang Wu and collected relevant handling fees or commissions. Li Si's behavior is a typical illegal foreign exchange business crime. However, the illegal service form he provided has changed from the previous direct exchange of RMB-foreign currency to the addition of intermediary commodities such as virtual currency as a carrier.
However, from Zhang San’s perspective, does it constitute a joint crime of Li Si’s illegal business crime or other crimes?
1. As a trader of virtual currency, does Zhang San commit an illegal business crime?
It mainly depends on whether Zhang San has any subjective intention.
As a virtual currency trader, as mentioned above, Zhang San’s behavior itself does not belong to the purchase and sale of foreign exchange. It is a pure virtual currency trading behavior. Even if it is used as a business activity and he engages in long-term activities of buying low and selling virtual currency high, it is itself It also does not involve the issue of illegal business crimes. However, if Zhang San and Li Si have the intention to commit a common crime, that is, the intention to help him illegally buy and sell foreign exchange, they will constitute an accessory to the illegal transaction of foreign exchange. Therefore, from a subjective and intentional perspective, it needs to be discussed on a case-by-case basis.
(1) The two parties became currency exchange partners, and Zhang San had subjective intention
But if Zhang San and Li Si reach an agreement, Zhang San will clearly become an important link in Li Si’s currency exchange chain, specializing in providing virtual currency supply services. In fact, Zhang San subjectively not only knows it, but also actively Zhang San's intention to participate in illegal exchange of foreign exchange directly constitutes the crime of illegal business operations such as illegal buying and selling of foreign exchange. This point is not, and should not be, controversial in practice or in legal theory. However, the controversial issue is the issue of evidence, that is, what evidence is needed to prove Zhang San’s degree of participation, such as relevant chat records, cooperation agreements, testimonies of relevant participating employees, etc.
(2) Zhang San had no idea that the other party was engaged in currency exchange business, and there was no subjective intention.
If Zhang San has no idea that Li Si is an illegal bank operator engaged in currency exchange business, it can be legally determined that Zhang San does not have subjective criminal intention. At this time, Zhang San cannot be found to have committed a crime. Since there is no subjective intention, Their virtual currency trading behavior cannot be regarded as an active act of helping them exchange foreign exchange.
Therefore, the crux of the issue is whether Zhang San is subjectively aware of the behavior of Li Si and other counterparties.
If you knew it, to what extent did you know it?
(3) Zhang San’s knowing knowledge is vague and cannot be regarded as subjective intention.
For example, Zhang San and Li Si have large transaction records every month, and the transaction price between the two parties, Zhang San's price is significantly higher than the ordinary market price. At this time, it can only be inferred that Zhang San may have subjective " "Fuzzy" and "summary" clearly know that the other party may be engaged in some illegal cybercriminal activities, so it can only be considered as a crime of trust.
And if the two parties only have frequent transaction records, the transaction price is not abnormal, and there is no other evidence to prove that Zhang San had clear or general knowledge. However, Zhang San also talked about it when facing the interrogation (or questioning) of the case handling agency. I found out that my counterparties, Li Si, were abroad and engaged in foreign trade.
However, if Zhang San knows that Li Si is abroad and is engaged in foreign trade, does he definitely know that Li Si asked Zhang San to buy virtual currency for the purpose of engaging in foreign exchange business? No matter from the perspective of legal logic or common sense in life, it is impossible to draw such a conclusion. However, some people believe that Zhang San should plead guilty and accept punishment, and then recommend a suspended sentence. In judicial practice, it is not ruled out that Zhang San is forced to undergo criminal punishment. The pressure forced him to confess. This kind of confession and punishment should be regarded as an unjust, false and wrongful conviction even if the verdict is effective.
Therefore, in judicial practice, this kind of erroneous presumption of thinking should be criticized and opposed. First of all, there should be no such erroneous induction. For example, some people believe that when Zhang San reads news reports, he should know that virtual currency transactions help others to launder money/ Therefore, once Zhang San has received funds for such criminal activities in his transaction, subjective knowledge can be directly presumed. The reason is that Zhang San has read the news reports, and thus it is determined that Zhang San has committed the crime of assisting information network criminal activities. , or even covering up and concealing the proceeds of a crime. Since the crime of aiding and trusting is not a felony in itself, under the leniency system for pleading guilty and accepting punishment, such persons tend to be given a suspended sentence after pleading guilty and accepting punishment, which risks leading to unjust, false, and wrongful convictions.
2. The issue of this crime and the other crime: the crime of illegal business operations or the crime of accomplices
If Zhang San does know that Li Si is engaged in currency exchange business, but the two parties have not directly reached a conspiracy, but they do not know whether Li Si’s purchase of virtual currency is directly related to currency exchange, which leads to a question, can it be determined at this time? Is Zhang San’s virtual currency transaction an act of criminal assistance to Li Si?
The author believes that if Zhang San only knows that Li Si is engaged in illegal currency exchange business, and there is no other evidence to prove that the virtual currency trading behavior between them is related to the currency exchange behavior, such as transaction price, transaction method, etc., Zhang cannot be identified as such. The act of three constitutes a favor. However, if there is evidence that can fully prove Zhang San’s virtual currency trading behavior, and Zhang San knew that he might provide help to the other party’s illegal exchange business, then Zhang San should be deemed to have committed the crime of assisting information network criminal activities, rather than illegal activities. The joint crime of business crime, because the joint crime of illegal business crime requires Zhang San to form a "direct intention" subjectively, that is, to directly know which specific transaction and in what way provided what kind of illegal exchange business. If Zhang San cannot clarify this issue and only knows that his virtual currency trading behavior will help Li Si’s currency exchange, this kind of knowing is a kind of vague knowing and can only be a general knowing. That is to say, it is most appropriate to consider it as a crime of aid and trust.
