Stealing other people's bitcoins is not considered stealing?
Original Author: Mankiw Blockchain Lawyer Team
On November 23, 2022, Shen Bo, a partner of Fenbushi Capital, tweeted that his digital currency wallet had been stolen and the loss was as high as 42 million US dollars.
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1. Is stealing digital currency considered stealing?
After reading the article, I fell into deep thought. With my simple law feeling, since my things were stolen, shouldn’t the person who stole them be convicted and punished for the crime of theft? Why should I be convicted and punished for the crime of illegally obtaining computer information systems?
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2. Is the theft of digital currency reasonable as the crime of illegally obtaining computer information systems?
First of all, it must be clear that although this article was published in the China Prosecutors Magazine and the WeChat public account, and the author of the article is also a working prosecutor, strictly speaking, this article is only an academic discussion and does not constitute legal effect judicial interpretation. However, this kind of practical articles also has a certain guiding role in judicial practice in various places.
Taking my own search on the Judgment Documents Network with the keywords "bitcoin" and "theft" as an example, courts in various places have convicted and punished the defendant for the crime of theft, and for the crime of illegally obtaining computer information systems. A (2021) Liao 02 Xing Zhong No. 258 criminal judgment made by the Dalian Intermediate Court is representative to a certain extent. When the defendant was found guilty of theft in the first instance, the second-instance court revoked the part of the first-instance court’s judgment that the defendant committed the crime of theft and changed the sentence The parties committed the crime of illegally obtaining computer information systems. The corresponding sentence also dropped from eleven years to four years.
That being the case, let us follow the train of thought of this article and think about the rationality of identifying the theft of digital currency as a crime of illegally obtaining computer information systems.
The crime of illegally obtaining computer information systems is set up in Chapter VI of the Criminal Law, the crime of disturbing public order. It can be seen that the legal interests protected by this crime should be the data security of computer information systems; the crime of theft is a traditional natural crime, and its The protected legal interests are property owned by others, and the scope of this property includes tangible objects, intangible objects and property interests. The reason why the article on illegally stealing bitcoin is that the theft of digital currency constitutes the crime of illegally obtaining computer information systems is because digital currency is not considered to be currency in the notices issued by the central bank, the Ministry of Industry and Information Technology and other ministries and commissions, and does not have the nature of property, so it does not meet the crime of theft Therefore, it should be convicted of the crime of illegally stealing computer information systems."However, an important issue was ignored in this article. The notice stated that "although Bitcoin is called 'currency', it is not Currency in the true sense.Bitcoin should be a specific virtual commodity in nature
. Although the notice denies the currency attribute of digital currency, it never denies the commodity attribute of digital currency. Since it is a commodity, it should naturally be regarded as "property" for criminal regulation and protection.
Thinking from another perspective, drugs are objects rejected by the whole society, and their illegal attributes are even endorsed by laws formulated by the National People's Congress. Not only do they not have the attributes of commodities, I even don't think they have the attributes of objects. However, the Minutes of the Symposium on the Trial of Drug Crime Cases by Certain Courts in the Nation (Fa [2008] No. 324) clearly states that "those who steal, rob, or rob drugs shall be convicted of the crime of theft, robbery, or robbery respectively, but shall not be counted as crimes." amount, and shall be convicted and sentenced according to the seriousness of the circumstances.” Since drugs, which are negatively evaluated in the law, can be regarded as "property" protected by the crime of theft in the criminal law, then why do we exclude a property that is only excluded from currency by departmental regulations from the legal interest of the crime of theft? What about outside the scope of protection?
There is a more important problem in practice in determining the theft of digital currency as the crime of illegally obtaining computer information systems, how to determine the final sentence of the defendant. According to the logic of the aforementioned article, digital currency is not regarded as property in the sense of criminal law, so there is no necessity and feasibility for digital currency to determine its market value. Similarly, we can also apply the same reasoning according to the "Minutes of the Trial of Drug Crimes", regardless of the amount of the crime. However, one of the criminalization criteria for the crime of illegally obtaining computer information systems is "the illegal income of more than 5,000 yuan or the economic loss of more than 10,000 yuan" (Computer Case Judicial Interpretation Article 1 Item 4, Fa Shi [2011] No. 19 ), since the stolen digital currency cannot be valued, how to determine the loss caused by obtaining the computer information system is also a problem that needs to be studied.
Finally, this article believes that the theft of the "cold wallet" is innocent because it did not intrude into the computer system and did not cause actual losses. I don't want to interpret this conclusion from a legal point of view. I just want to ask. According to the law of energy conservation, the victim bought digital currency at a large price and stored it in the "cold wallet", but the theft of the "cold wallet" did not invade the computer system. crime. Then the victim didn't even have a way of relief, where did his money go, disappeared out of thin air, and the energy was suddenly not conserved at this moment?
