1. Cash trading of USDT was convicted of illegal business operations
On December 16, 2023, the Guangdong Provincial High Court released an article "This kind of price difference can't be earned!" This is a criminal case that has been adjudicated in 2022, and the article emphasizes that U merchants moving bricks to buy and sell USDT is equivalent to buying and selling US dollars, which is a disguised act of buying and selling forex, and once the amount exceeds 5 million, it constitutes the crime of illegal operation.
Prior to this, the crypto world's understanding of virtual money transactions as constituting a criminal offense was only that stolen money was received during the transaction, and it was presumed that they subjectively knew it, which either constituted the crime of aiding and abetting or the crime of concealment. (This is limited to discussing the crimes that can be constituted by pure U business)
However, the results of the case released by the Guangdong Provincial High Court mentioned above have shattered this perception.
The case occurred in February 22, A is a U businessman, often collect U from retail investors, and the collected U is sold to the acquisition party in cash, this time with the acquisition C agreed to pay money in Zhongshan City, Guangdong Province, and hand over U, because after the transaction, he will carry a large amount of cash, for which A also specially hired a bodyguard B. A and customer C exchanged about 814,000 U at the Exchange rate between RMB coins and US dollars on that day, for a total of 5.1 million RMB coins. As a result, on the way back from renting a car, A and B were arrested by public security officers at the checkpoint.
This is a typical U business offline face-to-face cash selling U case, the entire transaction ** did not involve stolen money, there was no Exchange currency, only the act of buying and selling USDT, was convicted of illegal business **, but the defendant did not appeal, the judgment has taken effect.
The trial court held that A and B used the form of buying and selling virtual money to buy and sell forex in disguise, and the circumstances were serious, constituting the crime of illegal business operation, A belonged to the principal offender, and B participated in the whole process as a bodyguard, and knew about it, and was an accessory.
In the end, A was sentenced to 8 months in prison and B in 6 months in prison for the crime of illegal business operation. In addition, the 5.1 million people's coins seized in accordance with the law were confiscated according to law, and Li Si's mobile phone was a tool for committing crimes in the transaction of virtual money and was confiscated according to law.
The trial judge held that:
*In accordance with the provisions of Article 2 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Criminal Cases of Illegally Engaging in Fund Payment and Settlement Business and Illegal Buying and Selling of Forex, those who carry out illegal trading of forex such as reselling forex or disguised trading of forex, disrupting the order of the financial market, and the circumstances are serious, shall be convicted and punished as the crime of illegal business operation in accordance with the provisions of Article 225, Paragraph 4 of the Criminal Law. *
In this case, defendant A used cash to acquire the USDT of retail investors in the "crypto world" at a price lower than the platform, and then resold it at the US dollar Exchange rate on the day to earn the middle price difference and profit from it. According to A's confession, in order to acquisition USDT reselling for profit, he even borrowed money from a bank, and the loan amount was as high as one million. This kind of behavior of converting large sums of money into US dollars through USDT will inevitably reduce the country's forex reserves, affect the state's macro-management of forex, undermine the sole legal status of the people's coin in the domestic market, and greatly interfere with the effectiveness of forex management and the stability of the legal Exchange Rate, disrupt the normal order of the financial market, and is an act of buying and selling forex in disguise, which should be punished.
Second, buy and sell USDT = buy and sell USD?
**Personally, I believe that there is a clear logical error in the inference of the above applicable legal provisions. I do not agree with the judgment that the act of buying and selling USDT is equivalent to illegal trading of forex. **
We first have to clarify what forex is?
According to Article 3 of the Regulations of the People's Republic of China on Forex Administration:
For the purposes of these Regulations, the term "forex" refers to means of payment and assets that may be used for international settlement in coin other than the following:
*(1) Foreign coin cash, including paper coins and minted coins; *
*(2) Foreign coin payment vouchers or payment instruments, including bills, bank deposit certificates, bank cards, etc.; *
*(3) Foreign coins securities, including bonds, stocks, etc.; *
*(iv) Special Drawing Rights; *
*(5) Other forex assets. *
**Obviously, USDT is not in this list. In addition, there are no laws, regulations, rules, normative documents and other documents in China that characterize USDT as forex. **
In addition, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and other ten departments led by the Central Bank also defined virtual coins in the Notice on Further Preventing and Handling the Risk of Speculation in Virtual Money Transactions (924 Notice) issued on September 24, 2021, Article 1, Paragraph 1 of the Notice:
*(1) Virtual money does not have the same legal status as fiat coins. Bitcoin, Ether coin, USD and other Virtual Money have the main characteristics of non-coin issuance authorities, the use of encryption technology and distributed account or similar technology, and the existence in digital form, etc., and are not legally compensatory, and should not and cannot be used as coin in the market for circulation. *
** To make it clear, virtual money belongs to specific virtual goods, not coins, since it is not a coin, it is even less likely to be forex. Therefore, buying and selling USDT is not the same as buying and selling forex in disguise. **
**3. Does buying and selling USDT constitute an illegal business crime? **
The views can be seen from the typical forex cases related to virtual money jointly issued by the State Administration of Foreign Exchange and the Supreme People's Procuratorate:
Buying and selling virtual money constitutes the crime of illegal business operation Circumstance 1:
Using virtual money such as USDT as a medium to realize the exchange between RMB coins and forex constitutes the crime of illegal operation. The actor used virtual money as a medium, used the special properties of virtual money to circumvent national forex supervision, and realized the value conversion between people's coins and foreign exchange through the exchange of "*** RMB coins - virtual money - foreign exchange ****", which is a disguised purchase and sale of foreign exchange, and shall be investigated for criminal responsibility for the crime of illegal business operation in accordance with law. *
Buying and selling Virtual Money constitutes the crime of illegal business operation Circumstance 2:
- Providing virtual money perpetrators with illegal forex trading personnel colluding in advance, or knowing that others are illegally buying and selling foreign exchange, but still providing substantial assistance to them in realizing the conversion of local coins and foreign coins through trading virtual money and other means, constitutes a joint crime of illegal business operation. Providing virtual money trading services to persons who illegally buy and sell forex, but only have a general understanding of the criminal acts they help, and do not specifically realize that helping to illegally buy and sell forex can help pursue criminal responsibility for the crime of information network criminal activities. *
Only in the above two circumstances can it be determined that it is a disguised purchase and sale of forex, constituting the crime of illegal business operation. In the above-mentioned case of the Guangdong Provincial High Court, A's behavior model is only "people's coins-virtual money", which does not involve the conversion to US dollars, which does not meet the above situation 1 and has nothing to do with scenario 2.
According to Article 96 of the Criminal Law, the term "violation of state regulations" in the Criminal Law refers to violations of laws and decisions formulated by the National People's Congress and its Standing Committee, administrative regulations, administrative measures, decisions and orders issued by the State Council.
In other words, only those formulated by the National People's Congress, the Standing Committee of the People's Republic of China, and the State Council can be regarded as "state regulations". The "9.24 Notice" was issued by 10 ministries and commissions including the Chinese People's Bank of China, and the notice is a departmental regulation, not a national regulation. In addition, the "9.24 Notice" also clearly does not prohibit individual citizens from investing in virtual money, which means that ** buying and selling USDT does not violate national regulations, let alone constitute the crime of illegal business **.
IV. Conclusion
Therefore, I personally believe that ** buying and selling USDT does not constitute an illegal business crime. **In the absence of clarity in relevant laws and regulations, the criminal law shall uphold modesty, implement the principle of legality of crimes, and adopt relatively strict standards for criminalization, so as to avoid infringing on the legitimate rights and interests of citizens.
This is the motto of the judge in the case, which emphasizes that the law should be fair and just, and that everyone should be treated equally. But revisiting the case, is that really the case?