2021年9月24日，央行等十部門(mén)聯(lián)合下發(fā)《關(guān)於進(jìn)一步防範(fàn)和處置虛擬貨幣交易投機(jī)風(fēng)險(xiǎn)的通知》（以下簡(jiǎn)稱“924通知”）。本文的一些觀點(diǎn)結(jié)合924通知相關(guān)精神進(jìn)行闡述。相關(guān)地，目前幣圈涉嫌犯罪越來(lái)越受到辦案機(jī)構(gòu)的關(guān)注。幣圈OTC在整個(gè)犯罪鏈中比較容易被發(fā)現(xiàn)，處?kù)墩麄€(gè)案件的前端，由於辦案機(jī)構(gòu)對(duì)貨幣行業(yè)的了解有限，OTC商家往往對(duì)法律一無(wú)所知。由此帶來(lái)的信息鴻溝和認(rèn)識(shí)不善，導(dǎo)致不少OTC商戶“誤傷”，因此，在對(duì)涉嫌犯幣圈信託罪的OTC進(jìn)行辯護(hù)時(shí)，必須重點(diǎn)關(guān)注其合法性。場(chǎng)外行為及犯罪嫌疑人是否具有犯罪故意申辯無(wú)罪。

同時(shí)，對(duì)於確實(shí)構(gòu)成犯罪、信託犯罪的認(rèn)定為輕罪的，應(yīng)當(dāng)根據(jù)具體的犯罪情節(jié)、社會(huì)危害性等作出輕罪辯護(hù)，爭(zhēng)取不起訴和使用緩刑。

同時(shí)，非涉案財(cái)產(chǎn)處置、維權(quán)等刑事逆向服務(wù)也貫穿於辯護(hù)工作之中。

1.幣圈OTC行為雖然屬於非法金融活動(dòng)，但不等於犯罪。

幣圈的OTC行為習(xí)慣上稱為「場(chǎng)外交易」。

其本質(zhì)是法幣與數(shù)位貨幣的兌換。

一句話，就是一隻手交錢(qián)，另一手交幣。

由於「場(chǎng)外交易」這個(gè)習(xí)慣用語(yǔ)，導(dǎo)致辦案機(jī)構(gòu)之間存在許多誤解。

很多辦案人員對(duì)貨幣產(chǎn)業(yè)和相關(guān)法律法規(guī)、部門(mén)規(guī)章不了解。

當(dāng)他們聽(tīng)到「場(chǎng)外」這個(gè)詞時(shí)，他們先入為主地認(rèn)為OTC的行為是非法且不公平的。

合法性，因此有必要明確相關(guān)法律監(jiān)管問(wèn)題。

First, normal personal OTC behavior can only be considered illegal financial activities at best. In previous relevant documents, they all made negative evaluations of the OTC behavior of institutions, and did not explicitly prohibit individuals from engaging in transactions in legal currency and virtual digital currencies. According to the 924 notice, "Illegal financial activities such as legal currency and virtual currency exchange business... are strictly prohibited and resolutely banned in accordance with the law. Those who carry out relevant illegal financial activities that constitute a crime will be investigated for criminal liability in accordance with the law." In the notice, relevant statements No subject has been added before. From a cautious point of view, it should be considered that individuals engaging in OTC activities are considered illegal financial activities. However, at the same time, the notice also contains the statement "Those who constitute a crime will be investigated for criminal liability in accordance with the law." That is to say, for Normal and ordinary personal OTC behavior should at most be evaluated in terms of general illegality. As a departmental regulation, the 924 Notice can only be used as a prerequisite for constituting a crime, but cannot be the basis for determining a crime. It also needs to be combined with all subjective and objective elements. review.

Second, individual OTCs should not evaluate the nature of behavior based on "off-site" and "on-site" criteria. The so-called "on-exchange transactions" refer to transactions between individuals and the trading platform, while "over-the-counter transactions" refer to transactions between individuals who are separated from the trading platform. What needs to be made clear is that currently there is no “on-market trading” in our country! Before the 94 Announcement, individuals and trading platforms could engage in legal currency transactions. For example, if a buyer wanted to purchase virtual digital currency, he only needed to pay the legal digital Huobi to the platform, and the trading platform would pay the corresponding virtual digital currency to the buyer. This is floor trading. The 94 Announcement comprehensively prohibited this behavior, but it did not prohibit fiat currency transactions between individuals. Therefore, after the 94 Announcement, trading platforms can no longer engage in fiat currency transactions with individuals. The current trading platform widely 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, and the buyer will transfer the legal currency offline through the bank or WeChat or Alipay. 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". This concludes a legal currency transaction. Summary For example, from an offline perspective, the buyer gives the seller a sum of legal currency. From an online perspective, the seller gives the buyer a sum of virtual digital currency. During the entire process, the trading platform does not participate in the transaction and does not charge any handling fees. , in essence, the trading platform is not involved. Even if it is matched by the trading platform, it is still an over-the-counter transaction in nature. This is no different from "paying money with one hand and coins with the other" between individuals. Therefore, when determining whether an individual's OTC behavior constitutes a crime, especially whether it constitutes "knowingly" subjectively, it should not be distinguished by "off-site" or "on-site", but should be based on transaction price, transaction volume, KYC review, Comprehensive identification of chat records and other related situations.

Third, whether individuals engaging in legal currency transactions falls within the scope regulated by Notice 924 still requires further explanation from relevant departments. Previous documents stated that "virtual currency is a specific virtual commodity", and Notice 924 did not deny this. However, according to the requirements of Notice 924, individuals can neither engage in legal currency transactions nor currency transactions, so it has The most compliant way to do some virtual digital currencies is to hoard them. This obviously conflicts with the previous positioning of virtual digital currencies as specific virtual commodities. Therefore, if personal legal currency transactions are completely prohibited, does it violate higher standards? level of laws or administrative regulations? At the same time, the 924 notice mentioned "carrying out the exchange business between legal currency and virtual currency, and the exchange business between virtual currencies." Does general currency-to-crypto transactions and legal currency transactions between virtual digital currency enthusiasts count as engaging in a "business"? In particular, can currency transactions between players be considered a civil act of bartering? It also needs to be clarified through explanations from relevant departments or relevant judicial precedents.

2. Innocence defense ideas for currency circle OTC suspected of helping people commit crimes

"Amendment to the Criminal Law (9)" adds the crime of assisting information network criminal activities, that is, knowingly providing others with technical support such as Internet access, server hosting, network storage, communication transmission, etc. for committing crimes by knowingly using information networks to commit crimes, or providing advertising promotion Helping behaviors such as payment and settlement are independently criminalized. In the criminal law academic community, the crime of helping and trusting is considered to be the principal offender of an accomplice. The author believes that in the practice of defense, the currency circle OTC is suspected of helping the crime, which mainly involves the helping behavior of "payment and settlement". The focus of the innocence defense for the crime of helping the letter mainly focuses on whether the criminal suspect is "knowingly", that is, whether the criminal suspect There is subjective intention to commit a crime. For the case-handling agencies, their preconception of guilt will lead to discrepancies between the confessions of some suspects and the actual situation, or they may be induced to make statements such as "I roughly know the source of the money." "Unjustified" is a confession in which the suspect thinks "nothing is wrong" but can actually be found to have subjective criminal intent. Therefore, the defender should combine the following specific circumstances to defend the suspect's lack of criminal intent.

The first is whether individual OTC merchants have fulfilled sufficient KYC obligations. During the transaction process, individual OTC merchants should first clarify who the transaction partner is. It is not enough to know who the transaction partner is. It is also necessary to determine whether the transaction person and the bank card holder are consistent. In practice in the currency circle, video authentication is usually adopted, that is, the other party is required to hold their ID card and bank card to record a video. The content is usually "My name, ID card, and bank card belong to me, and the source of my funds is legal and legitimate." , and are willing to admit any legal liability." In this way, individual OTC merchants can determine the basic situation of the counterparty with which they are trading. It should be considered that individual OTC merchants have fulfilled their prudent KYC obligations. After all, individual OTC merchants are just ordinary individuals. Without the many inquiry systems of judicial authorities, 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 subjective criminal intention.

The second is whether the transaction price obviously deviates from the market conditions. Many case-handling agencies believe that the transaction prices of individual OTC merchants are often slightly higher than market prices during transactions, and therefore believe that individual OTC merchants have criminal intent. This also reflects that the case-handling agencies do not have a deep enough understanding of OTC in the currency circle. First of all, there are differences in the legal currency transaction prices of trading platforms. Taking the fiat currency transaction prices in the Huobi app as an example when the author wrote this article, the lowest price of USDT was RMB 6.58 and the highest price was RMB 6.61, with a difference of RMB 0.03. As the public security organs gradually deepen their crackdown on "two cards", the situation of frozen cards in fiat currency transactions in the currency circle is becoming more and more serious. Mainstream trading platforms such as Huobi app have launched so-called "blue shield merchants", that is, with high KYC certification, For merchants with good reputation, the price of such merchants will be more expensive, even 0.05 yuan more expensive than the price of normal platform users. Therefore, the defender believes that as long as the transaction price does not obviously violate the market conditions, the criminal suspect cannot be determined to have subjective intention because the transaction price is higher than the market price. The vast majority of individual OTC merchants are mainly engaged in the "inverted U" business, that is, they buy USDT in RMB at a price slightly lower than the trading platform, and then sell USDT at a price slightly higher than the trading platform. This process is It's called "inverted u", and what it actually earns is the difference of a few cents between buying and selling. The author once represented some OTCs in the currency circle who were suspected of committing crimes, covering up, and concealing criminal proceeds. The transaction price of some OTC merchants was a few cents or more higher than the market price. In this case, if the OTC merchant argued that he It is difficult for the court to accept this defense of ignorance of 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 "give away money" for no reason.

Many investigators believe that since they can match purchases and sales on the trading platform, why do they still need to find off-site OTC merchants? They believe that OTC merchants have criminal intent. In fact, to a large extent, this is also a helpless move in the currency circle. The author is also involved. For digital currency transactions, the current legal currency transactions, especially the process of exchanging digital currencies for RMB, are extremely common in having their cards frozen. Some people have calculated that the card freezing rate is over 30%, which is a very exaggerated figure. Therefore, both parties to the transaction must ensure safety. , if your card is not easily frozen, you can only seek more familiar and reliable OTC merchants for transactions off-site. Even if the prices of these OTC merchants are slightly higher than those of the trading platform, you can only make this choice for safety. After all, if there is a cheaper Among reliable merchants, who would choose the more expensive one? Therefore, if the transaction price does not seriously deviate from the market conditions, it cannot be determined that the individual OTC merchant has subjective criminal intent just because the transaction price deviates slightly from the market conditions.

The third is whether the necessary review has been carried out on the other party's transfer bank card. Take the sale of USDT as an example. As an individual OTC merchant, in addition to the transaction price, what you are most concerned about is whether the source of the other party's money is legal and whether your card will be frozen due to transaction behavior. Therefore, the vast majority of individual OTC merchants are most afraid. is receiving black money. At present, the common trading habit in the industry is to require the other party to provide bank transaction records. If the transaction records are less than one month, the transaction will usually not be continued. Transaction flow alone is not enough. You also need the other party to use a bank card to transfer money to your WeChat account, and then use WeChat to withdraw funds to the bank card. This is used to prove that the card is a "live card" and at the same time, the other party's WeChat account must be recognized. Whether there is any abnormality in the signal, individual OTC merchants will dare to continue legal currency transactions only if all the above-mentioned transaction risks are eliminated. If the criminal suspect has performed all the above tasks, how can it be determined that he has the subjective intention to collect black money? How can it be considered that it subjectively provides payment and settlement for criminal acts?

Fourth, the size of the transaction has no relationship with whether there is subjective mens rea. Many case investigators believe that the transaction amount of individual OTC merchants is too large and there is subjective criminal intent. The basic logic is that it is inconsistent with objective logic for individual OTC merchants to conduct such large transactions without asking the source of funds. In essence, the currency circle is a relatively closed circle. There are many players who hold huge amounts of virtual currency assets, and there are also many "Ten Thousand Coin Hous". You must know that the value of 10,000 Bitcoins is about 3 billion yu