How to determine the amount of crimes involved in the NFT digital collection platform?

Question

Considering that in judicial practice, the calculation standards of the crime amount corresponding to different crimes and whether they can be deducted are different. Based on the principle of practicality, in this article, we take three crimes often involved in domestic NFT digital collection platforms as examples. for analysis.

For every NFT digital collection case that is investigated by the public security, there is always a problem that cannot be avoided, that is, how much money is involved in the crime?

This issue is not only concerned by the parties concerned, but also by the police. Previously, Lawyer Liu Honglin, director of Mankiw Law Firm, had conducted a detailed study on this issue and provided countermeasures (for details, please refer to the article: "Shuzang Platform Was Criminally Filed, How to Determine the Amount of Crime?"), based on this, this article will continue to expand This topic is summarized and sorted out, welcome to Paizhuan.

Considering that in judicial practice, the calculation standards of the crime amount corresponding to different crimes and whether they can be deducted are different. Based on the principle of practicality, in this article, we take three crimes often involved in domestic NFT digital collection platforms as examples. for analysis.

01. How to calculate the amount of suspected illegal business operations?

According to the provisions of the Criminal Law, the criminal amount in the crime of illegal business operation is the illegal income, and according to the Research Opinion on the Determination of "Illegal Gains" in the Crime of Illegal Business Operation issued by the Research Office of the Supreme People's Court in 2012, the "illegal income" in the crime of illegal business operation , refers to the "amount of profit", that is, the amount remaining after deducting the reasonable expenditure directly used in business activities from all the income obtained by the perpetrator from illegal production and sales of goods or provision of services (that is, the amount of illegal business operations).

Therefore, if the NFT platform constitutes a crime of illegal operation due to lack of certain qualifications or failure to obtain the approval and license of relevant departments, the "profit" generated by its operating income minus reasonable expenses (operating costs) is considered a crime of illegal operation. Illegal proceeds. However, the rent of the business premises and the cost of labor wages can be deducted because they are reasonable expenses directly used in business activities. In addition, based on the characteristics of the NFT platform, some network expenses (such as cloud services, website fees, advertising expenses, etc.) should also be deducted.

Expressed in a formula, it is: crime amount = total business income - reasonable business cost.

02. Suspected of fraud, how to calculate the amount?

According to the popular theory of criminal law, the purpose of criminal law is to protect legal interests, and the essence of crime is to protect legal interests. In this way, what the crime of fraud protects is public and private property. Therefore, the crime amount of the crime of fraud should be reflected in the actual loss of the victim. Interpretation of Several Issues stipulates in Article 9: “Those who use false or counterfeit identity documents to go through network access procedures and use mobile phones, resulting in relatively large losses in telecommunication charges, shall be punished by fraud in accordance with the provisions of Article 266 of the Criminal Law. guilty and punished.”

However, cybercrime has a wide range of spread, high concealment, and difficulty in obtaining evidence. After the case occurred, it was impossible to confirm the identity of the victims one by one, verify and calculate the actual loss. Therefore, the "Supreme People's Court, Supreme People's Opinions of the Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in the Handling of Telecommunications and Network Fraud and Other Judgment Cases (Fafa [2016] No. 32) stipulates that when handling telecommunications and network fraud cases, due to the large number of victims and other objective conditions, it is impossible to collect the victims' statements one by one, the victims' statements can be combined with the verified bank account transaction records, third-party payment Settlement account transaction records, call records, electronic data and other evidence, comprehensively determine the number of victims and the amount of fraudulent funds and other criminal facts.

But at this time, an extended question arises, what kind of data is used to determine the amount of fraudulent funds? The user's top-up amount? The sales amount in the primary market? Or the transaction flow of the secondary market? Beyond that, what amounts are deductible?

We believe that the above situation depends on the NFT platform project to analyze specific issues. For example, secondary transactions between users are usually settled directly between users, and the flow of funds is also from user to user. The platform often only charges 6% to 8% of the transaction amount in the middle. It is somewhat inappropriate to consider the total amount of the transaction as the "crime amount". Therefore, Lawyer Mankiw’s point of view is: due to the particularity of the Shuizang platform, the “criminal amount” of the Shuizang platform can be used as a reference standard. From a financial perspective, it can be determined as the company’s operating income, that is: the sales income of the first-level collection + white List and other non-collection-type sales income + transaction fee income from transactions between users, so that it is more in line with the characteristics and logic of the industry.

In addition, the money refunded before the crime should be deducted from the amount of the crime, such as the handling of refund complaints for some users, the refund and refund of the entire project of the Shuzang platform, etc., the 2001 National Court Trial of Financial Crime Cases Work Symposium The Minutes also support this view.

03. How to calculate the amount if you are suspected of not committing a crime?

The criminal amount in the crime of illegally absorbing public deposits generally refers to the amount that the actor illegally absorbs or absorbs public deposits in a disguised form. The full amount of funds absorbed is calculated, and the amount is often based on the user's direct investment amount.

Regarding the deduction of the criminal amount for the crime of illegally absorbing public deposits, the following points need to be paid attention to:

Absorbing funds for specific objects within relatives, friends or units without publicizing it to the public is not illegal or disguised absorption of public deposits, and should be deducted;
Fundraising participants will not be deducted for the amount of reinvestment after recovering the principal or repeated investment after obtaining returns, but it can be considered as a sentencing circumstance;
The amount of funds invested by the criminal suspect himself and his close relatives shall be deducted;
Funds recorded in the name of the criminal suspect but who did not actually participate in the absorption and received no benefit of any kind from it shall be deducted.

Returning to the perspective of managing data storage, some data collection platforms will launch collection repurchase activities. For example, if a user spends 100 yuan to buy a certain collection, the official promises that as long as the user locks the warehouse for a certain period of time, the official will repurchase it at a specific price. In this case, there is a high criminal legal risk of being suspected of non-smoking.

In this case, we believe that it is safer to determine the amount involved in the case based on the sales revenue in the primary market, because in this case it is the funds raised. As for the price speculation among users, the raised amount should not be considered as the criminal amount involved.

04. Summary

If the amount of the crime is determined to be less, the sentence will naturally be lighter.

When the nature of the case is not changeable, it is extremely important to reasonably determine the amount involved in the case through a detailed review of the company's operating conditions. In economic cases, the amount of crime often determines whether you can be innocent or not prosecuted, whether you can be released on bail or probation, and the amount of fines awarded, which should be the key focus of NFT digital collection entrepreneurs in pre-compliance or after criminal involvement .