【Introduction】As the title suggests, the birth of virtual currencies such as Bitcoin has had a profound impact on the global financial landscape. At the same time, it has posed serious challenges to legal governance. According to general logic, for emerging things like virtual currencies, it is necessary to define and classify them in order to apply various criminal offenses under criminal law to regulate illegal activities. However, the key point is that virtual currencies are products of blockchain technology, which have multiple characteristics such as anonymity, property, data, and global circulation. Because they are difficult to be controlled by relevant departments due to their decentralization, they are not recognized as currency by relevant laws and policy documents in China. Therefore, the definition of virtual currencies can be said to be extremely difficult. The academic and practical circles have put forward various opinions, and different opinions exist in conflict and opposition. Whether to recognize the property nature of virtual currencies will determine whether illegal acquisition of virtual currencies constitutes a crime against property or a crime against data, and it has important judicial significance. This article will summarize the existing viewpoints on the characterization of virtual currencies to help readers understand the complex and profound connotations of virtual currencies.
1. The Controversy of Virtual Currencies’ Property Nature
Virtual currencies are highly electronic electromagnetic data generated by complex algorithms based on modern information technology and cryptography. Due to their characteristics such as anonymity, decentralization, and global circulation, they have become one of the tradable types of currency once they are born and have been widely disseminated. Currently, there are various virtual currencies that can be exchanged for legal tender, such as Tether. Because virtual currencies have a high investment value, domestic investors are rushing into the field of virtual currencies to get a share, while some criminals use virtual currencies to earn illegal money. In response to the risks brought about by the prevalence of virtual currencies in the financial industry, China has issued a series of normative documents since 2013, such as the “Notice on Preventing Bitcoin Risks,” defining domestic virtual currency transactions as illegal. These normative documents are also important basis for many opposing viewpoints on the property nature of virtual currencies. Since then, the situation of virtual currency-related crimes and criminal crackdown on virtual currencies in China has shown an alternating trend. Illegal acquisition of virtual currencies is a typical crime related to virtual currencies, but there are different judgments on illegal acquisition behavior in practice. The main reason is the controversy over whether virtual currencies belong to property in the sense of criminal law, and different answers to this question lead to different judicial approaches.
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In general, there are several existing viewpoints on the characterization of virtual currencies: First, the illegal acquisition of virtual currencies constitutes theft because virtual currencies have property attributes and belong to property in the sense of criminal law. Second, the illegal acquisition of virtual currencies constitutes the crime of illegally obtaining computer system data because virtual currencies do not have property attributes and belong to electromagnetic data. Third, the illegal acquisition of virtual currencies constitutes a crime and at the same time violates both theft and the crime of illegally obtaining computer information system data, which is a case of imaginary competition, and one of the major crimes should be determined. Scholars and practitioners have different reasons and arguments for their discourse, and there are also viewpoints that advocate judging the nature of virtual currencies based on the time periods when relevant policy documents were issued. The following text will focus on the academic and practical circles to summarize and organize the existing viewpoints and their reasons.
2. Academic Debate – Investigation of the Property Nature of Virtual Currency
As early as 2015, Professor Zhang Mingkai, a leading figure in the field of law, published an article titled “The Nature of Illegally Obtaining Virtual Property” in the Journal of Law. He believed that the view of categorizing the act of illegally obtaining other people’s virtual property as computer crime is limited in dealing with cases where virtual property is illegally acquired without the use of computers. This is because virtual property has the characteristics of being manageable, transferable, and having value, and it is reasonable to classify the act of illegally obtaining other people’s virtual property as a property crime. However, Professor Liu Mingxiang from the Law School of Renmin University of China had a different opinion on the nature of stealing virtual property in a discussion published in the same journal in 2016. He argued based on virtual property in online games and believed that after the enactment of the “Criminal Law Amendment (VII)”, the act of stealing virtual property on the internet undoubtedly meets the constitutive elements of the crime of illegally obtaining computer information system data, and therefore, the legitimacy of punishing it with that charge should be affirmed. The academic discussion is quite interesting. Subsequently, Associate Professor Yao Wanqin from the Law School of Southwest University of Political Science and Law published an article titled “An Analysis of the Qualification of Theft of Network Virtual Property – A Rebuttal to Professor Liu Mingxiang” in which he refuted Professor Liu Mingxiang’s viewpoint and clearly stated that network virtual property belongs to the object of property rights in civil law and falls within the category of property in criminal law, and it is an intangible form of property. He supported using the “sentencing rules for theft based on the amount” and the “sentencing rules for theft based on the circumstances” to determine the value and sentencing range of stealing network virtual property. At the same time, Chen Luolan, a teacher from the Faculty of Humanities and Law at Zhejiang A&F University, and Ren Yanjun, a teacher from the School of Criminal Justice at Henan University of Economics and Law, respectively argued for the essential nature and characteristics of virtual property, supporting its qualification for protection under criminal law. The former believed that illegally stealing virtual currency constitutes an imaginative concurrent offense, while the latter believed it is a separate crime of theft. When calculating the amount of the crime, it is more appropriate to base it on the average transaction price on the day the crime was committed. Meanwhile, Professor Guo Zhilong from China University of Political Science and Law and Professor Yang Zhiqiong from Southeast University expressed concerns about the expanding scope of the crime of illegally obtaining computer information system data, believing that the crime covers too wide a range of data and may encompass both property interests already protected by criminal law and property interests that were originally not protected by criminal law, potentially becoming a new type of “pocket crime.” Therefore, it can be seen that most scholars still support the property nature of virtual currency, believing that it has formed a relatively mature trading system. If virtual currency is simply regarded as data, it would be too narrow an understanding and would raise many issues in legal application, which would not be conducive to the judicial protection of victims.
III. Practical Discussion – Controversy over the Property Nature of Virtual Currency
The authoritative views in the academic community will provide guidance to judicial practice, but prosecutors and judges are the personnel who actually deal with real cases. Therefore, the determination of the property nature of virtual currency by judicial practitioners will be related to the judgments of specific cases. It is worth mentioning that multiple procuratorates and courts have different opinions on this issue and conflict with each other, and a unified judicial standard has not yet been formed. For example, Wu Chunmei, Li Changlin, and Wang Xingyun, prosecutors of the Third Division of the Beijing People’s Procuratorate, believe that the Announcement on Preventing the Risks of Token Issuance and Financing issued by the People’s Bank of China and other seven departments in September 2017 emphasizes that virtual currencies such as Bitcoin do not have the attributes of currency. Therefore, after September 2017, the relevant rights of Bitcoin on trading platforms are not recognized by the overall national legal order, and the Bitcoin controlled by the trading platforms does not have the property nature in the sense of criminal law. The Notice on Further Preventing and Dealing with the Risks of Speculation in Virtual Currency Transactions issued by the People’s Bank of China and other ten departments in September 2021 has further tightened the control of virtual currencies such as Bitcoin, defining the relevant business activities of virtual currencies as strictly prohibited illegal financial activities. In other words, all Bitcoin-related business activities on trading platforms are illegal activities, which continues the spirit of the 2017 Announcement. The Bitcoin controlled by the trading platforms cannot be regarded as property in the sense of criminal law. Based on this, this article distinguishes between the virtual currency controlled by trading platforms and the virtual currency owned by individuals, and differentiates the criminal types of illegal acquisition of different types of virtual currency based on the time of the issuance of two key policy documents in September 2017 and September 2021 respectively, taking financial policies as the basis for interpreting the criminal nature of virtual currency. It believes that after the time when the state strengthens financial control, criminal acts of illegally obtaining virtual currency cannot be regulated by property crime regulations.
The discussion on whether virtual currency has the nature of property has not yet been settled. In 2023 alone, several official media outlets in China, including prosecutors, the Supreme People’s Procuratorate, and people’s courts, published articles with different viewpoints. On January 31, 2023, the article “Precise Qualification of Illegal Acquisition of Virtual Currency Crimes with Typological Thinking” by Vice Professor Sun Dao Cui and Prosecutor Wan Yijia was published on the official website of the Supreme People’s Procuratorate, advocating for specific individual judgments on the criminal nature of virtual currency and proposing judgment rules based on the ultimate purpose theory, the main nature theory, and the substantive judgment theory. It also believes that crimes related to virtual currency that attach a large amount of economic or property interests do not necessarily fall under the regulation of the crime of illegally obtaining computer information system data. On March 22, 2023, Chen Yutong, a senior prosecutor of the Fourth Level in the Third Prosecution Department of the First Division of the Beijing People’s Procuratorate, published an article titled “Determining the Nature of Illegal Acquisition of Virtual Currency from the Perspective of the Unity of Legal Order” in “Chinese Prosecutor”. It believes that virtual currency, as a special virtual property, meets the characteristics of “property” and should be evaluated as a criminal object of property crimes under criminal law. The state has adopted stricter control policies on the business activities related to virtual currency, denying the “currency” attributes of virtual currency, but has never denied the “property” nature of virtual currency. In the digital age, interpreting virtual currency as “property” under criminal law does not exceed the predictability of the public and does not violate the unity of legal order. It is a proper interpretation in line with the present situation. This viewpoint affirms the property nature of virtual currency and represents a major turning point in practical discussions. It was thought that the discussion on the property nature of virtual currency had already settled, but on August 24, 2023, Judge Wan Yongfu of the Fourth Intermediate People’s Court of Chongqing published an article titled “Qualification of Illegal Acquisition of Virtual Currency” in the People’s Court Daily. It proposed that if the illegal acquisition of virtual currency occurred before September 2017, the virtual currency traded during this period can be regarded as property in the sense of criminal law and has the attributes of computer information system data, and it also constitutes the crimes of theft and illegal acquisition of computer information system data. The heavier crime should be determined by choosing one among the imagined complicity crimes. If the behavior occurred after September 2017, the virtual currency at this time should not be recognized as property in the sense of criminal law, and it cannot be regulated by property crime. If a person obtains Bitcoin for profit by invading and modifying computer systems without causing substantial damage or failure of normal operation of the computer system, it should be regarded as the crime of illegally obtaining computer information system data. This viewpoint indicates that the judicial practice has not yet reached a consensus on the property nature of virtual currency.
Section 4: Summary of Opinions – My Views on the Nature of Virtual Currency as Property
From the above text, it can be seen that the characterization of virtual currency has been a headache for experts, scholars, and practitioners in the field. Industry leaders have interpreted the nature of virtual currency from various perspectives, such as its data essence, transaction value, and national policy objectives. They have expressed their own views on whether it constitutes property in the sense of criminal law, and there are conflicting opinions. Only the product of blockchain technology – virtual currency – has such charm. Regarding the opposition to the property nature of virtual currency, due to normative documents such as the “Notice on the Prevention of Bitcoin Risks” issued by the People’s Bank of China and other five ministries, as well as the “Announcement on the Prevention of Risks in Token Issuance and Financing” issued by the People’s Bank of China and other seven departments, which prohibit virtual currency-related exchange activities, its transaction value is subject to negative evaluation. In order to maintain consistency with financial policies, criminal law should not protect the property nature of virtual currency. However, the understanding and application of the Supreme People’s Court’s “Research Opinions on the Qualification of Illegal Sales of Stolen Game Currency through Computer Theft” and “Interpretation on Several Issues concerning the Application of Law in Handling Theft Criminal Cases” in 2012 have established a judicial path for the protection of virtual property as computer information system data, to some extent denying the property nature of virtual property. It is believed that for the act of stealing virtual property, if it is necessary to regulate it under criminal law, it can be punished according to crimes such as illegal acquisition of computer information system data, and should not be treated as theft. These are the main arguments of those who support the crime of illegally acquiring computer information system data. However, based on my summary, it can be seen that more and more experts and scholars in both academia and judicial practice have affirmed the property nature of virtual currency. I believe that in the discussion of whether virtual currency belongs to property, there is no need to discuss many complex reasons. We should start with the characteristics of property itself. If it meets all the requirements of property, why should it be excluded from the category of property? Moreover, the act of illegally acquiring virtual currency is a means, and the purpose is still the huge value of virtual currency. Criminal law only punishes the means of the act, ignoring the concept of accomplice liability. Although China’s existing financial policies deny the exchange activities of virtual currency, they do not completely prohibit individuals from holding virtual currency. Moreover, virtual currency has exchange value and widely circulates worldwide, which is an objective fact. We cannot simply regard its data nature as its universal characteristic because of policy restrictions, while ignoring its essential characteristics as a financial commodity.
Section 5: Conclusion
Nothing has caused such legal confusion and prompted numerous scholars and practitioners to roll up their sleeves and engage in discussions for years like Bitcoin. However, the truth becomes clearer through debate. Only through more discussions and analyses, starting from the data essence, property nature, underlying logic, and development prospects of virtual currency, and viewing the issue from an international perspective, can we approach the core points and make the most reasonable judgments. Finally, whether virtual currency can return to the essence of virtual goods, whether there will be a unified judicial ruling, whether there will be specific legislation for virtual currency in the future, and how legislation will respond to existing problems, let us wait and see.
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