The judgment announced by the Beijing Arbitration Commission, which is different from the mainstream, once again highlights the controversial nature of virtual currency disputes involved in Bitcoin. Under the background of accelerating the construction of a unified national market, how to unify the judicial judgment standards of such cases is also an urgent problem to be solved.
Debate on Legitimacy: All Illegal or Part Legal? The same paragraph, two interpretations. Did the notice six months ago clarify all activities related to virtual currency, or did it only prohibit virtual currency activities as illegal finance?
It can be said that if virtual currency such as Bitcoin is protected by Chinese laws, its premise is that it must conform to the identification of virtual property in the Civil Code.
It can be seen that in the "think" part of the above case, the Beijing Arbitration Commission proposed: "The virtual currency including Bitcoin in this case belongs to virtual property."
So, does virtual currency really belong to virtual property?
The first controversy about this determination is the interpretation space of relevant laws and administrative regulations by all parties.
As mentioned above, the Civil Code does recognize the legal status of virtual property, but it does not specify the constituent elements of virtual property, nor do other laws and administrative regulations.
The only thing involved is the Civil Code issued by the central bank and other five ministries in February 2003. Among them, when defining the attributes of Bitcoin, it is mentioned: "In nature, Bitcoin should be a specific virtual commodity, which does not have the same legal status as currency, and cannot and should not be used as currency in the market."
It should be noted that Wang Jin, an arbitrator of Beijing Arbitration Commission, pointed out in the Notice on Preventing Bitcoin Risks in 2020 that virtual goods are not a legal concept, and the only concept that is similar to it in law is Reflections on Bitcoin Dispute Arbitration from the Legal Nature of Bitcoin (202 1 1 abolished)No. 128.
In addition, the above administrative regulations only mention Bitcoin, and do not talk about other virtual currency attributes.
Some lawyers hold a negative view that virtual currency can not obtain legal status under the current supervision system in China.
He further pointed out that because the first sentence of Article 1, paragraph 2, of the General Principles of Civil Law (hereinafter referred to as the Notice on Further Preventing and Handling the Speculative Risks of Virtual Currency Trading) issued by the Central Bank and the Supreme People's Court in September 20021year clearly mentioned that "the business activities related to virtual currency are illegal financial activities", virtual currency lost its legitimacy and could not be protected by law.
However, it is also based on the second paragraph of Article 1 of this Notice, but the second sentence of this paragraph quotes the Beijing Arbitration Commission: "It is suspected of illegal financial activities such as illegal trading of tokens, unauthorized public offering of securities, illegal futures business, illegal fund-raising, and other business activities related to virtual currency such as buying and selling virtual currency as a central counterparty, providing information intermediary and pricing services for virtual currency transactions, token issuance financing and virtual currency derivatives transactions.
Therefore, the Beijing Arbitration Commission believes that the Notice does not prohibit all trading activities with virtual currency as the target, but prohibits business activities related to virtual currency as illegal financial activities.
Liu Yang also agreed with the Beijing Arbitration Commission's ruling.
He said that virtual currency-related businesses should be controlled only if they are suspected of illegal financial activities, not all money-related behaviors, such as holding virtual digital currency. Holding itself does not violate any laws, regulations and regulatory policies.
Regarding the partial legality after the publication of the Notice, Liu Yang quoted the second sentence of the fourth paragraph of Article 1: "If a legal person, an unincorporated organization or a natural person invests in virtual currency and related derivatives, it violates public order and good customs, and the relevant civil legal acts are invalid, the losses caused thereby shall be borne by itself."
"It should be noted that if all civil legal acts of investing in virtual currency and related derivatives are deemed invalid, there is no need to add the sentence' violation of public order and good customs'." Liu Yang believes that the relevant civil legal acts can be invalid only if the investment acts violate public order and good customs. In other words, if the investment behavior does not violate public order and good customs, the civil behavior is effective and its effective consequences are protected by law.
Back to the judgment itself at the beginning of this article, the trial of Beijing Arbitration Commission also contains its tolerant and prudent judgment ideas for new things in development.
Before the promulgation of the Notice, Wang Jin pointed out in the aforementioned article that in civil and commercial trials, on the one hand, we should consider the relevant provisions of supervision and support the supervision institutions to effectively exercise their supervision functions according to law; But we should also strictly distinguish the different functions of civil and commercial trial and administrative supervision.
"It is best to look at this prohibition in the field of administrative supervision from a legal perspective and not to interfere excessively." Wang Jin believes that the freedom of contract of both parties should be guaranteed as much as possible on the premise of not obviously violating the mandatory provisions of the state and not obviously damaging the public interests and public order and good customs.
"In the eyes of most businessmen and lawyers, Bitcoin obviously has property attributes, but the regulatory voice must be respected by the judicial system." Xia Hailong has a clear view on this. Under the current supervision system in China, virtual currency can not obtain legal status.
Different trial standards: there are differences in the identification of virtual property. In judicial practice, many courts in Beijing, Shanghai and other places recognize that virtual currency such as Bitcoin has the attribute of virtual property, while more local intermediate courts do not recognize the attribute of virtual currency other than Bitcoin. Some courts admit that Bitcoin is a virtual property, but say it "lacks legal economic evaluation criteria".
Different parties' grasp of the legal nature of virtual currency and relevant national regulations, coupled with the value orientation of trial, has caused the phenomenon of "different judgments in the same case"
For example, in August, 20021,Beijing No.3 Intermediate People's Court [(20021) J.03No. 10254] held that the physical existence of bitcoin is a digital code, which exists in cyberspace, and its value can be quantified by existing measurement standards. Therefore, according to the law, Bitcoin can be regarded as virtual wealth on the Internet.
The characteristics of production have the attributes of things.
202 1,1/Shanghai No.1 Intermediate People's Court (202 1) Shanghai 0 1 Minzhong 1 1 624 thinks that money, as a virtual currency, passes through a mining machine (super Due to the limitation of its specific procedures and algorithms, it is impossible to generate indefinitely and is scarce; After digging it out, the owner can go to a specific trading platform for cash use. BSN coins have the property of virtual property and can be traded as ordinary commodities.
At the same time, more local intermediate courts do not recognize the property attribute of virtual currency other than Bitcoin, and some courts admit that Bitcoin is a kind of virtual property, but say that it "lacks legal economic evaluation standards", so the final trial result still points to "application is not supported", "contract is invalid", "it does not belong to the scope of civil litigation cases" and "at your own risk".
For example, in July, 20021,the Intermediate People's Court of Zhuhai City, Guangdong Province (20021) held that the digital token CC currency system platform founded by Yunfutong Payment Technology Co., Ltd. was issued without approval, and the number was freely distributed by the platform, which did not condense human abstract labor and could not be measured by the existing measurement standards.
202 11/The Intermediate People's Court of Changsha City, Hunan Province (2021) Xiang 0 1 Minzhong 1 1978 thinks that the virtual currency involved is neither money nor goods with virtual property.
202 1 12 The Intermediate People's Court of Zunyi City, Guizhou Province (202 1) No.9625, the final word of Qian 03, held through trial that ethereum is not an authoritative issue, has no equal legal status as currency, has no species attribute and cannot be quantified by legal tender.
In February 2023, the Intermediate People's Court of Taizhou City, Zhejiang Province (2022) Zhejiang 10 Minzhong No.352 held that Bitcoin, as a virtual property, lacked legal economic evaluation standards, and the risks arising from participating in virtual currency investment transactions should be borne by the participants themselves.
In addition, in judicial practice, what other discretionary issues do virtual currency disputes such as Bitcoin face?
He Lou said that related cases faced difficulties in obtaining evidence and judicial procedures. Due to the technical nature of virtual currency, information barriers, inconsistent standards for overseas evidence collection and identification will be involved in handling cases. Freeze virtual property and entrust a third party to handle it.
"On the one hand, China clearly defines virtual currency-related behaviors as illegal financial activities, thus denying the possibility of claiming economic benefits based on virtual currency. On the other hand, there are also a large number of other countries that have not banned virtual currency, and actors can indeed obtain actual economic benefits through virtual currency. " Xia Hailong pointed out that in criminal cases involving virtual currency, how to convict related "theft" and fraud, and how to determine the amount of crime are controversial and need to be solved urgently.
He Lou also believes that it is difficult to determine economic losses in such cases. "At present, the relevant certification standards are not uniform, and the decentralization feature leads to the price difference of virtual currency in different markets, and the price fluctuates greatly." He said.
In fact, in the case of different trial standards in China, there are "spears" and "shields" for the dispute cases that determine the value of virtual currency property.
The value of bitcoin in precedent: zero, market price, or the same recognized price? "The Notice on Preventing Bitcoin Risks also recognizes that Bitcoin is a' specific virtual commodity'. Although it does not have the same legal status as currency, it still has property value. If it refuses to protect it, it will be unfair to the parties. "
Take the first domestic arbitration award revocation case involving Bitcoin (20 18) as an example.
20 17 12. An agreement signed by both parties stipulates that Gao will return all digital currency assets entrusted by Li (20. 13 bitcoin, 50 bitcoin cash and 12.66 bitcoin diamonds) to Li's electronic wallet in three phases.
As a result, after the agreement was signed, Gao did not fulfill his contractual obligations.
According to the arbitration clause in the agreement, Li applied to Shenzhen Arbitration Commission for arbitration, demanding Gao to return the US dollar equivalent of the above-mentioned digital currency assets and interest.
After trial, the arbitral tribunal held that Gao's failure to deliver the bitcoin agreed by both parties and regarded as having property significance in accordance with the contract involved constituted a breach of contract and should be compensated.
As for the property value of bitcoin, the arbitral tribunal estimated the property loss that should be compensated by referring to the public information such as the closing price of bitcoin and bitcoin cash published online by Li.
Gao Mouyu then appealed to the Shenzhen Intermediate People's Court, requesting the Shenzhen Intermediate People's Court to revoke the above arbitral award. The main reason for revocation is that the arbitral award violates the public interest of our country.
Specifically, Gao claimed that according to the Announcement on Preventing the Financing Risks of Token Issuance jointly issued by the Central Bank and other seven ministries and commissions, since September 4, 20 17, any trading platform shall not engage in the exchange business between legal tender and "virtual currency", shall not buy or sell tokens or "virtual currency" as a central counterparty, and shall not provide services such as pricing and information intermediary for tokens or "virtual currency".
Therefore, since 2065438+September 4, 2007, it is illegal for okcoin.com website to provide digital currency's trading and pricing. The arbitral award found that the high compensation for Li was equivalent to the US dollar of Bitcoin, and then the US dollar was converted into RMB, which essentially supported the payment and transaction between Bitcoin and legal tender in disguise and infringed on the interests of the public, so the arbitral award should be revoked.
In October, 2002111,the official website of Beijing Arbitration Commission published the Annual Observation of Commercial Arbitration in China (20021), calling this case the first arbitration award revocation case involving bitcoin in China, and it is also a case in which the court confirmed that the arbitration award violated the public interest in recent years.
According to Article 3 of the Regulations on Verification of Reports, the people's court considers that the arbitration award made by the arbitration institution in Chinese mainland violates the public interest, and the case that needs to be revoked must be reported to the Supreme Court for approval step by step.
In other words, the conclusion of the case was endorsed by the Supreme Court, so the conclusion is referential and reproducible, which is of great significance to the future judicial and arbitration practice.
At the same time, it was observed in 2000 that the Notice on Preventing Bitcoin Risks also admitted that Bitcoin was a "specific virtual commodity". Although it does not have the same legal status as currency, it still has property value. If protection is refused, it may be unfair to the parties.
However, in the judgments of some courts in Shanghai, when determining the value of virtual currency such as bitcoin, the market price of bitcoin published by a third-party platform was not adopted as in the above-mentioned arbitration award, but the price recognized by the parties was adopted as the standard, thus circumventing the prohibitive provisions of the regulatory authorities on payment, pricing and information intermediary of virtual currency.
"How to objectively and fairly determine the property value of virtual currency and protect it without violating the national monetary policy is a difficult problem to be solved in judicial practice in the future." The annual observation mentioned.
He Lou believes that in the process of dealing with civil and criminal cases, it is inevitable to involve the pricing of virtual property. The usual reference standards are: calculated according to the real money input of users; According to the market transaction price; Pricing is determined by the network operator; According to the direct loss and indirect loss of the victim.
Related Questions and Answers: What is the only legal virtual currency in China? There is no legal virtual currency in China. China has not said that virtual currency (such as Bitcoin) is illegal at present, but neither has it said that it is legal. It is only forbidden to trade virtual currency, but there are still many people trading in China. Seven ministries and commissions, including the People's Bank of China, jointly issued the Announcement on Preventing the Financing Risks of Token Issuance, which clearly regulated relevant behaviors. The announcement jointly issued by seven ministries and commissions clearly pointed out that the tokens or "virtual currency" used in token issuance financing are not issued by the monetary authorities and there is no legal compensation.
Virtual currency: Bitcoin