The common crimes involved in virtual currency transactions are nothing more than these: concealing and hiding the proceeds of crime, assisting in information network criminal activities, money laundering and illegal business operations. In addition to the objective requirements of the constituent elements, these crimes also require "knowingly" subjectively.
In other words, if it is impossible to prove that the perpetrator was "subjectively aware", then it is impossible to convict and sentence him. At this time, some "smart" people have a crooked idea: since it is impossible to convict someone if he is not "aware", then if I insist on not admitting that I was "aware", will the investigating agency not be able to convict me?
The answer is: No! Although subjective "knowingly" is an indispensable element of conviction, in the complete laws and regulations and judicial practice, "stubbornly resisting" and refusing to admit "knowingly" does not necessarily mean that you are "not knowingly" in the eyes of the law. On the contrary, it may lead you into a deeper abyss and bear heavier criminal responsibility!
After all, Article 55 of my country's Criminal Procedure Law clearly stipulates: "... in the absence of a confession from the defendant, if the evidence is conclusive and sufficient, the defendant can be found guilty and sentenced. The evidence must be conclusive and sufficient and must meet the following conditions: (a) The facts of conviction and sentencing are all supported by evidence; (b) The evidence on which the case is determined has been verified to be true through legal procedures; (c) Based on the evidence of the entire case, reasonable doubt about the facts determined has been eliminated." In other words, even if there is a lack of a confession from the parties involved, if the other evidence of the case is combined, or if your behavior in the case is analyzed, it can be inferred that you "knew" it, and you can be convicted!
In judicial practice, from which aspects might one determine whether an actor is subjectively "knowing"?
1. Has the bank card used for the transaction been frozen?
In the third point of the Minutes of the Meeting on the Application of Laws in the “Card Cutting” Operation, the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Justice described such a scenario: if the party’s card was previously frozen and then continued to be rented or sold, there is a high possibility that he or she will be deemed to have “presumed knowledge”. The original text is: “In the process of handling cases, we can focus on examining whether the perpetrator has the following characteristics and performances, and make a judgment on whether he or she constitutes “knowing knowledge” based on the evidence of the whole case: … (3) The “two cards” rented or sold were frozen due to suspected fraud, money laundering and other illegal crimes, and then helped to unfreeze them, or cancelled the old cards, applied for new cards, and continued to rent or sell them…” However, it does not mean that as long as the card has been frozen, it will constitute the “knowing knowledge” of the crime of aiding and abetting. First, the scenario setting of this provision is strict, requiring that the reason for freezing the card is suspected of fraud, money laundering and other illegal crimes. Second, this provision is aimed at the behavior of renting and selling two cards. Although it is also relevant to other behavioral scenarios, it cannot be simply presumed that the perpetrator is subjectively “knowing” based on “the card has been frozen”. It is also necessary to combine other objective factors for comprehensive consideration.
2. On-exchange or off-exchange trading?
Combined with judicial cases, we can see that at present, after the judicial authorities have a more comprehensive and profound understanding of virtual currency transactions, they have classified the abnormality of transaction methods. The degree of abnormality is from high to low, which is offline transactions, niche exchanges, and mainstream exchanges (Ouyi, Binance, etc.). Because OTC transactions lack the regulation, guarantee and anti-money laundering certification of trading platforms, OTC merchants often need to invest more audit obligations to make up for this part of the gap. However, if the OTC merchant's audit of funds only stays at verbal inquiries and does not carry out substantive audit obligations, it is very likely that the judicial authorities will presume that they are subjectively "knowing or should have known".
(III) The price of the currency being withdrawn does not match the market conditions?
If the price of the virtual currency traded is much higher than the market price, it is very likely that the actor is deemed to have subjective "knowledge". The price of the virtual currency traded is one of the important factors in determining whether the transaction behavior is abnormal. When the transaction price of the virtual currency traded by the actor is much lower than the market price, the actor needs to pay a higher duty of care.
(IV) Is the chat software used domestic or foreign?
If the two parties to the transaction use overseas chat software (such as Telegram, The Onion Router) during the transaction, and frequently use encrypted communications, data destruction and other measures during communication, there is reason to believe that the actor is evading supervision and is likely to be presumed by the investigating agency to be subjectively "knowing".
(V) Have the audit obligations been fulfilled?
The judicial interpretation of the crime of aiding and abetting provides that: "... after being presumed to have known, except where there is evidence to the contrary..." That is to say, the perpetrator can prove his innocence with evidence from the transaction. For example, when conducting a transaction, the perpetrator can ask the other party to show the recent transaction records of the bank account to check whether there is any abnormal situation of "quick in and quick out, whole in and whole out" of funds; the perpetrator can also ask the other party to provide a video statement that the source of funds is legal; in addition, the perpetrator also needs to fulfill the substantive audit obligations such as in-depth understanding of the source of the other party's funds.
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