In order to maintain the order of currency issuance and circulation, most countries in the world have adopted criminal laws to regulate currency-related behaviors, and at the same time use penalties to punish currency-related crimes, or even felonies. Private digital currency has been controversial for more than ten years. The author believes that the emergence of new crimes around it and the harm it may cause to the country and social interests indicate that it must be regulated by strong criminal law.
The real dilemma of the criminal regulation of private digital currency crime. First of all, it is difficult for the existing monetary crimes to regulate private digital currency crimes. Judging from the current criminal law of our country, there are five provisions concerning currency crimes, all of which stipulate Article 151, Article 170 to Article 173 in the crime of disrupting the order of the socialist market economy in Chapter 3 of the Criminal Law. However, due to the particularity of private digital currencies, these regulations simply cannot be applied. At present, from the perspective of legal concepts, the “currency” in the currency crime composition only includes domestic or foreign legal tender and ordinary commemorative coins or precious metal commemorative coins issued by the People’s Bank of China. The current regulations on currency crimes in our country cannot be applied to illegal acts carried out by using private digital currencies. The issuance, circulation and use of private digital currencies are in a blank area of criminal supervision. Therefore, it is necessary to make adjustments to the relevant norms of the current criminal law, to bring the above-mentioned private digital currency behaviors that are still outside the scope of the criminal regulation into the scope of the criminal regulation in a timely manner, and to construct and weave a criminal law network with strict private digital currency crimes. Second, the existing criminal law is difficult to regulate private digital currency financing. Article 20 of the People’s Bank of China Law stipulates: “No unit or individual may print or sell tokens and coupons to replace RMB in circulation in the market.” However, the domestic form of token issuance includes the issuance of initial tokens for financing activities. It still exists, seriously disrupting the economic and financial order. Judging from the current criminal law, the existing financial crimes include: the crime of issuing stocks, companies, and corporate bonds without authorization; the crime of illegally absorbing public deposits; the crime of financial fraud; the crime of organizing and leading pyramid schemes; and so on. However, judging from the constituent elements of these crimes, it is difficult to apply to the above-mentioned private digital currency financing activities, and it is difficult to effectively combat and effectively regulate illegal financial activities through private digital currencies.
Legislative assumptions about private digital currency crimes. Private digital currency crime is a new type of crime, which has serious social harm, especially it will cause a great impact on the country’s currency system. Therefore, the criminal regulation of private digital currency crimes and the timely improvement of criminal law loopholes are the primary tasks of managing various problems in the private digital currency field.
First, add the crime of issuing digital currency without authorization. Unauthorized currency issuance has greater harm and puts major national interests in a state of danger and internal and external threats. Therefore, in order to prevent problems before they occur and regulate unauthorized issuance of digital currency, the crime of unauthorized issuance of digital currency should be added to my country’s current criminal law. In terms of the specific statutory penalty allocation, considering the serious social harm of unauthorized issuance of digital currency, a statutory penalty that is heavier than the crime of counterfeiting currency should be allocated in order to achieve a balance between crime and punishment. In addition, given that the unauthorized issuance of digital currency is very harmful to the society, it needs to be regulated in advance. The crime of unauthorized issuance of digital currency can be set as a behavioral crime. The amount of issuance and the result will not be regarded as the guilty factor, but it As a statutory penalty for promotion. In terms of specific crime design and statutory penalty allocation, it can be stipulated as follows: those who issue digital currency without authorization shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and a fine; in any of the following circumstances, sentenced to fixed-term imprisonment of more than ten years or life Imprisonment, fines or confiscation of property: unauthorized issuance of digital currency group leaders; issuing digital currency in the name of the People’s Bank of China; publicly issuing non-statutory digital currency in my country; there are other particularly serious circumstances. According to the legislative assumption, any subject, as long as the non-statutory currency issuer, issues open capital flow functions in my country, uses digital currency that is not restricted by geographical areas and circulates in the market, regardless of whether it is profitable or regardless of the number of issues, that is, It constitutes the crime of issuing digital currency without authorization.
Secondly, abolish the restrictions on the crime of counterfeiting currency by judicial interpretations and administrative regulations. From the perspective of the social harm of behavioral representations, the act of counterfeiting legal digital currency is more destructive to the national sovereign currency credit and monetary system than counterfeiting paper money, and may even cause chaos in the national legal digital currency network system. The forgery of legal digital currency can be treated as an aggravated plot of the current crime of forging currency. However, it should be noted that the biggest difference between the “counterfeiting” behavior of the crime of counterfeiting legal digital currency and the aggravating plot of the crime of unauthorized issuance of digital currency is that the “counterfeiting” is the legal digital currency. As a template, “fraudulent use” only uses the name of the currency issuer without using legal digital currency as a template. In comparison, “counterfeiting” is based on legal digital currency, and it wants to use fakes as real, but “counterfeiting” uses fakes as real.
Third, amend the crime of holding and using counterfeit currency. After the emergence of private digital currency, the use of private digital currency includes not only its use as currency, but also its use as a financial instrument or financial derivative; at the same time, the private digital currency held and used by the actor is not a counterfeit legal tender. Therefore, the crime of holding and using counterfeit currency as stipulated in Article 172 of the Criminal Law should be amended from the subjective aspect, the circumstances of the conviction and sentencing, and the amount of fines. As far as specific amendments are concerned, the crime can be amended as: knowing that it is illegal to hold or use currency in a relatively large amount, sentenced to fixed-term imprisonment of not more than three years or criminal detention, and or a single sentence of 20,000 yuan to 200,000 yuan Fines; if the amount is huge or the circumstances are serious, a fixed-term imprisonment of not less than three years but not more than 10 years, and a fine of not less than 50,000 yuan but not more than 500,000 yuan; a particularly large amount or a particularly serious circumstance shall be sentenced to fixed-term imprisonment of more than 10 years and 500,000 yuan Fines above 2.5 million yuan or confiscation of property. It is worth noting that the perpetrator’s transfer of a single or single amount of private digital currency funds is often greater than the amount of ordinary ***** use, because it is mainly used in cross-border remittances, bond speculation, etc., and its harmfulness It is also larger, so the penalty is increased correspondingly when the crime of circumstance is added. If the perpetrator uses counterfeit currency for money laundering, tax evasion, etc., special provisions such as money laundering or tax evasion are directly applicable.
At present, my country is in a critical period of building a socialist power, and is also experimenting with legal digital currencies. Therefore, it is necessary to consider the legal regulation of private digital currency-related behaviors. However, from the perspective of the current criminal law, it is difficult to achieve effective regulation of criminal acts involving private digital currencies, and targeted criminal legislation must be based on the particularity of digital currencies and the perspective of crime prevention.
