My husband is a U merchant. He was arrested for selling U and is now in a detention center. He has been in custody for several months and has not admitted his guilt or accepted punishment. He feels that he was unaware of the fraudulent funds he received while selling U offline. If he had known it was fraudulent funds, he would not have traded. During the investigation stage by the public security organs, he insisted that he was wronged. He also refused to admit his guilt or accepted punishment in the procuratorate and the court. As a result, the first instance court sentenced him to more than 3 years. What should we do now?"
Some cryptocurrency traders were arrested directly by the public security authorities after their bank cards were frozen for receiving stolen money. Do you know under what circumstances it will be presumed that you knew about the crime? If you insist on not admitting guilt and there is no confession from you, will you be convicted in court?
1. Can you be acquitted without a confession and by refusing to plead guilty? Be careful that it may backfire!
According to Article 55, Paragraph 1 of the Criminal Procedure Law of the People's Republic of China, "In sentencing all cases, we must attach importance to evidence, investigation and research, and not easily believe confessions. If there is only the defendant's confession but no other evidence, the defendant cannot be found guilty and sentenced. If there is no confession from the defendant but the evidence is solid and sufficient, the defendant can be found guilty and sentenced."
As for Article 140 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, "Where there is no direct evidence, but the indirect evidence meets the following conditions at the same time, the defendant may be found guilty: (1) the evidence has been verified to be true; (2) the evidence corroborates each other, and there are no irreconcilable contradictions or unexplainable doubts; (3) the evidence in the case forms a complete chain of evidence; (4) the facts of the case determined based on the evidence are sufficient to eliminate reasonable doubt, and the conclusion is unique; (5) the reasoning based on the evidence is in line with logic and experience." Even if there is no confession from the defendant, if the evidence is true and sufficient, the defendant can be found guilty and sentenced.
Therefore, even if there is no confession from the suspect, if the other evidence is sufficient, a conviction can be achieved.
Moreover, confession and acceptance of guilt can lead to lenient punishment. According to the "Guiding Opinions on the Application of the Confession and Acceptance of Guilty System" (2019) issued by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Justice, the leniency for confession and acceptance of guilt should generally be greater than that for confession alone, or confession but not acceptance of punishment. For criminal suspects and defendants who surrender themselves and confess, and at the same time confess their guilt and accept punishment, a relatively larger leniency should be given within the statutory range. Confession and acceptance of guilt will not be evaluated repeatedly with surrender and confession.
2. How did the court decide?
The crux of the matter is that many merchants who buy and sell u-bricks insist that they are innocent. During the chat between them and the other party, the other party did not say that it was stolen money, and they also told them that they took detours to embezzle the money, etc., so they refused to embezzle the money and did not want to receive the stolen money. They were not aware of it and it did not constitute a crime. However, in practice, if both parties to the transaction must have a clear chat record informing each other that it is stolen money before they can be convicted, then more than 90% of those who were convicted of receiving stolen money in virtual currency transactions were acquitted.
Therefore, the innocence that the u-shang thinks may have already involved criminal offenses. It may even happen that the suspect does not plead guilty, does not show remorse, and does not receive a lenient sentence. So, from the perspective of the court, do you know how the court examines cases of whether virtual currency constitutes the crime of aiding and concealing? Based on what actions in your transaction is it presumed that you are subjectively aware?
At present, the court's determination of whether the transaction of virtual currency USDT is knowing after receiving the stolen money is based on the judicial interpretation of the crime of aiding and concealing the crime, and the court's judgment is as follows:
Criminal ruling of the Intermediate People's Court of Yingkou City, Liaoning Province, regarding the judgment that Xue et al.'s buying and selling of virtual currency USDT constitutes a crime of concealment:
"924 Notice" On September 15, 2021, the People's Bank of China, the Central Cyberspace Affairs Office, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Industry and Information Technology, the Ministry of Public Security, the State Administration for Market Regulation, the China Banking and Insurance Regulatory Commission, the China Securities Regulatory Commission, and the State Administration of Foreign Exchange issued the "Notice on Further Preventing and Dealing with the Risks of Virtual Currency Trading Speculation" No. 237 of Yinfa [2021]. Article 1, Paragraph (2) stipulates that virtual currency-related business activities are illegal financial activities. The defendant's bank card has been frozen: the data of the National Anti-Fraud Big Data Platform was retrieved to prove that before the occurrence of this case, the bank cards involved in the case that were stopped due to the transfer of fraudulent funds included Xue's Industrial and Commercial Bank of China card, which was stopped twice, Xue's Construction Bank card, which was stopped twice; Chen's Construction Bank card was stopped three times. The defendant's bank transaction flow proves that the bank card involved in the case had small transactions before the large transactions, which is the so-called card testing behavior. The video of Huang withdrawing 470,000 yuan proves the behavior of withdrawing money immediately after the inflow of fraudulent funds.
Therefore, the four defendants' virtual currency trading methods were obviously abnormal. According to relevant judicial interpretations, the defendants were deemed to be subjectively aware of the existence of the upstream crime. Generally, if the transaction is abnormal, it is presumed that they were aware of it, and they will not be convicted based solely on 924.
According to the criminal ruling of the Intermediate People's Court of Bengbu City, Anhui Province, abnormal behaviors such as online to offline transfers by exchanges are presumed to be known.
According to the confession of the appellant Zhang Moushen, his WeChat chat records, Alipay chat information and bank transaction details, it can be confirmed that the appellant Zhang Moushen argued that he started to engage in virtual currency transactions in 2017 and should be aware of the normal trading methods of virtual currencies. The virtual currencies involved are usually circulated through online platforms, but the appellant Zhang Moushen continued to use abnormal offline trading methods to obtain illegal profits. After his many bank cards were stopped and frozen, he still used small transfers to test before the funds were remitted. After the funds were remitted, they showed quick in and out. This is sufficient to prove that the appellant Zhang Moushen knew that the transaction method was obviously abnormal and still helped to transfer funds.
Therefore, it should be determined that the appellant Zhang Moushen had subjective knowledge that the funds he transferred included criminal proceeds, and objectively helped upstream criminals transfer fraud proceeds. His actions met the constituent elements of the crime of concealing and hiding criminal proceeds.
3. What trading behaviors are considered abnormal?
Based on relevant laws and regulations, court precedents, and a large number of criminal cases handled by the team, we conclude that the key to presumed subjective knowledge in trading virtual currency USDT is whether you have the following behaviors:
First, the bank card was frozen and payment was stopped.
Second, offline cash transactions or transactions on small exchanges.
Third, overseas chat software transactions.
Fourth, test the card behavior. Before each transaction, transfer 1 yuan to the bank card to see if the card is frozen.
Fifth, the price is abnormal, significantly higher or lower than the market price.
Sixth, there is no capital investment, but we can help upstream transactions.
Seventh, the behavior of frequently withdrawing cash afterwards.
Eighth, using other people’s bank cards for transactions.
Ninth, set up a studio and do regular work, but the fixed counterparty is involved in money laundering.
Tenth, they drive from all over the country to different places, but the other party is money laundering and they are implicated and cannot escape suspicion.
4. Reminder
The perception of cryptocurrency players and OTC merchants regarding virtual currency is that virtual currency is not an illegal act, and that receiving stolen money does not constitute a crime. There is a wrong perception that the public security organs will only freeze bank cards and will not convict. Some have encountered this before, where bank cards have been frozen due to stop payment. After repayment, some case-handling units did repay and unfreeze your bank cards. However, your handling of the unfreezing by this case-handling unit is not a successful experience, because some case-handling units are not very familiar with virtual currency cases, have not handled them, and are not clear about the circumstances in which virtual currency is convicted. If you encounter a case-handling unit that has handled criminal cases involving virtual currency, your previous freezing behavior may become the basis for the next case-handling unit to presume subjective knowledge.
The elements for conviction of the crimes of aiding and concealing the crime include objective and subjective elements. Objectively, you have indeed received the stolen money, but subjectively, whether you were aware of it or not is presumed. In practice, it can be based on the abnormal behavior summarized by the team. If there is abnormal behavior, it is only a matter of time before you are convicted.
If you buy or sell USDT, and the public security organs determine that it constitutes a criminal offense and take compulsory measures to detain you, you can entrust a lawyer to visit the detention center to understand the situation. After meeting with the suspect, they will make a preliminary judgment on whether the transaction behavior is abnormal during the virtual currency transaction process and whether it involves a criminal offense, and then formulate a defense plan.
Source: Lawyer Wu Enxiang