If this view holds, the fourth item notified by the 10 department will conflict with the second item. Article 4 of the new Notice is a risk warning for participating in investing in virtual currency. It is mentioned that any subject who invests in virtual currency and related derivatives violates public order and good customs, and relevant civil legal acts are invalid, and the losses caused thereby shall be borne by himself. The significance of this provision is to warn relevant investment risks, but it is effective on the premise that it does not violate public order and good customs, that is, the civil legal acts of relevant investment activities.
However, some people think that if all currency transactions and legal tender transactions are illegal financial activities according to the provisions of Article 2, then the so-called investment behavior should also be included in this currency transaction or legal tender transaction under the premise of illegality, which is also an illegal financial activity. Since it is illegal, it should naturally be an invalid act, and it is impossible to observe whether it conforms to public order and good customs. Therefore, some people think that there are contradictions in the contents of these two provisions.
The author believes that these two articles are not contradictory, and the mistake of the above viewpoint is that there is no distinction between the subjects or behavior patterns targeted by Article 2 and Article 4.
As for this problem, compared with the Announcement on Preventing the Financing Risks of Token Issuance issued by seven departments on 20 17, the concept of illegal financial activities is limited to the financing activities of token issuance, but the new circular on 202 1 924 10 expands the concept of illegal financial activities to almost all the issuance and trading activities related to virtual currency, which may be further expanded in the future.
2. The qualitative path of illegal operation of virtual currency exchange is basically clear.
Futures contract business is a clear red line of conviction, and you will be punished if you touch it.
In the previous 94 regulations, all virtual currency trading platforms are not allowed to engage in the exchange business between legal tender and tokens and "virtual currency", not to buy or sell tokens or "virtual currency" as a central counterparty, and not to provide pricing, information intermediary and other services for tokens or "virtual currency". However, the relevant criminal laws and regulations do not specify the relevant charges, but in the financing and issuance of tokens, the alleged charges mentioned include illegal sale of token tickets, illegal issuance of securities, illegal fund-raising and so on.
In the latest 924 new notice, a completely different charge was added to the list of suspected charges related to illegal financial activities, that is, illegally operating futures business. According to the criminal law, illegal operation of futures business, disrupting market order, and serious circumstances constitute the crime of illegal operation. The "serious circumstances" here, the amount standard is not high, and the crime amount can reach 300 thousand.
In the new notice No.924, the legal basis listed in the notice has also increased the Regulations on the Administration of Futures Trading compared with the provisions of No.94. This is because, at present, a large number of virtual currency exchanges will not only provide information intermediary services such as currency trading, but also provide margin investment contract investment business invested by digital currency, as well as related financial business such as margin financing and securities lending. Once these businesses involve trading with futures contracts or options contracts as the trading targets by public centralized trading or other means, they may be characterized as carrying out unapproved futures business, and once the amount reaches more than 300,000, they may be suspected of illegal business operations.
3. Another path of the crime of illegal business operation: opening a financial business exchange without authorization.
In fact, there is another exchange that only provides over-the-counter trading services and does not provide any other contracts or other blockchain financial services. Not suspected of illegal business?
At present, the answer is not so optimistic.
In this new notice, the more striking laws and regulations include the State Council's Regulations on the Qing Dynasty.
"Decision on Rectifying Various Local Trading Places and Effectively Preventing Financial Risks" and "Implementation Opinions of General Office of the State Council on Rectifying Various Trading Places".
Among them, "the State Council's Decision on Cleaning up and Rectifying Various Trading Places to Effectively Prevent Financial Risks" clearly stipulates that "trading places engaged in the trading of financial products such as insurance, credit and gold must be approved by the relevant financial management departments in the State Council." However, once an exchange is opened to provide trading services in digital currency, if it is aimed at customers in China, then the service is an illegal financial service activity, and such an exchange should be approved by the relevant financial management department. Once it is not approved, it is an illegal decision issued by the State Council, which is an illegal national regulation. If the market order is disturbed, the conviction logic of opening an exchange to provide illegal financial services will basically take shape.
Of course, according to the relevant reply of the current Supreme Law on the crime of illegal business operation, it is required to report cases without clear judicial interpretation to the Supreme Law step by step as the crime of illegal business operation. Judging from the current policy environment and supervision, I believe readers will have a relevant measure of their own psychology.
Some are legal abroad! Because if there is no exchange, no one will speculate on buying and selling based on bitcoin.
So isn't opening an exchange organized crime?