GuShiio.com Author | lawyer Liu Yang
It is reported that recently, there are widespread rumors on the Internet that customers in currency circles have been punished by local public security organs for climbing over the wall to speculate in coins, and all illegal gains from currency speculation have been confiscated.
The main basis of the punishment is:
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Interim provisions of the people’s Republic of China on the Administration of International networking of computer Information Networks
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Article 6 if a computer information network is connected directly to the international network, the international access channel provided by the national public telecommunications network must be used.
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No unit or individual may establish or use other channels for international networking.
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Article 14 whoever violates the provisions of articles 6, 8 and 10 of these provisions shall be ordered by the public security organ to stop networking, give him a warning and may concurrently impose a fine of not more than 15000 yuan; if there are any illegal gains, the illegal gains shall be confiscated.
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Article 11, paragraph 1, of the Public Security Administration punishment Law of the people’s Republic of China
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Article 11 contraband articles such as drugs and obscene articles seized in public security cases, gambling tools, gambling money, equipment for consuming or injecting drugs, and tools directly used to carry out acts against the administration of public security shall be confiscated and dealt with in accordance with the provisions.
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For a moment, the case caused an uproar in the currency circle, reminiscent of the case of programmers in Chengde, Hebei Province, who worked over a wall in 2023 and all their work income was confiscated. Some netizens called the Liao case & ldquo; ‘s first wall-climbing currency speculation case & rdquo;. In fact, although China has issued a series of normative documents, such as the notice on preventing the risk of Bitcoin and the notice on further preventing and dealing with the risk of hype in virtual currency transactions, banning financial activities related to virtual currency, however, individual investment behavior is not explicitly prohibited, and the emergence of this punishment causes customers in the currency circle to panic for fear of being involved in the confiscation storm. However, after reading the case report carefully, Liao and others mainly use non-statutory channels for international networking through VPN, get in touch with overseas customers who need to buy virtual currency through a foreign website, and then engage in the activity of selling virtual currency by buying low and selling high through overseas trading APP. This model is different from individual currency speculation to earn the rise and fall of virtual currency, and it is more similar to brick arbitrage, so titles such as ldquo; currency speculation income are fined & rdquo; and so on. However, whether it is individual currency speculation, brick arbitrage or OTC business, the biggest controversial point of this kind of administrative penalty is whether users can confiscate the profits earned by other actions after climbing over the wall.
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The answer is no.
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Therefore, if you are approached by the relevant authorities for jumping over the wall and speculating in coins, you can defend yourself from the following angles:
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1. Penalties imposed by public security organs are generally based on the interim provisions of the people’s Republic of China on the Administration of International networking of computer Information Networks (hereinafter referred to as the interim provisions). The interim provisions were issued by the State Council in 1996 and amended in 1997. the purpose of the legislation is that ldquo; formulates these provisions in order to strengthen the management of the international networking of computer information networks and ensure the healthy development of international computer information exchanges. Although rdquo; users have escaped the supervision of the national network through the virtual private network (VPN) technology, it will not result in the destruction of the international network of computer information networks in China. The public security organs cite this provision to punish the wall-climbing behavior that does not endanger the healthy development of international computer information exchange, which is not in line with the legislative purpose of the law.
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two。 Article 6 of the interim provisions on the basis of the public security organs-ldquo; no unit or individual may establish or use other channels for international networking. & rdquo; here & ldquo; other channels & rdquo; how to understand it? On February 13, 1998, the State Council Informatization leading Group issued the measures for the implementation of the interim provisions of the people’s Republic of China on the Administration of International networking of computer Information Networks. The third provision-ldquo; international access channel, refers to the physical channel used in international networking & rdquo;. It can be seen that due to the Internet development technology at the time of legislation, the ldquo; channel & rdquo; in the interim measures should be a physical channel according to historical interpretation. The vpn technology used by users to flip over the wall is to establish a private network in the public network through the virtual channel, and the data is transmitted through the security-ldquo; encrypted channel-rdquo; in the public network. In any case, from the legislative intent, it can not be concluded that the virtual channel belongs to the physical channel.
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3. It is also worth discussing whether administrative punishment is required to access overseas websites using vpn technology. As we all know, China’s Internet has a Chinese national firewall, which is not a common wall in our daily life, but refers to the prohibition of any unit or individual from evading national network supervision through virtual private network (VPN) technology without permission, and illegally visiting overseas websites prohibited by the state by means of IP blockade, content filtering, domain name hijacking, traffic restrictions and so on. The purpose of this regulation is to ensure the security of Internet information in China, crack down on visiting illegal websites involving pornography and gambling, commit Internet crimes at home and abroad, and even divulge state secrets and undermine the security of national ideology. However, currency speculation is not equal to any act that endangers China’s Internet security and sovereignty, and it is not explicitly prohibited by laws and regulations.
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4. The income from currency speculation is not the direct income from climbing over the wall. Even if the act of climbing over the wall is to be punished, the scope of confiscation of illegal income should be limited to the income from climbing over the wall. Illegal gains refer to the money obtained from the commission of illegal acts. Huang Haihua, director of the Legislative Planning Office of the legal work Committee of the National people’s Congress, has said that there should be a causal relationship between violations of the law and income. This kind of causality is direct, objective and recognized by common sense. In other words, the illegal income should have evidence value, which can prove the occurrence and severity of the illegal act. In practice, the illegal behavior of users climbing over the wall can not directly produce economic value, and the economic value comes entirely from the currency speculation after the illegal behavior, which is not explicitly prohibited at present, and the income generated should not be counted as illegal income.
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5. According to Article 33 of the Administrative punishment Law of the people’s Republic of China, if the illegal act of ldquo; is minor and corrected in time, and does not cause harmful consequences, there shall be no administrative penalty. Whoever violates the law for the first time and the harmful consequences are minor and corrects in time may not be subject to administrative punishment. & rdquo; if currency speculation users break the law for the first time and do not cause serious consequences, they can be corrected in time, and no administrative punishment can balance the consistency of law enforcement effect and social effect.
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6. The exercise of administrative act requires not only the principle of legality, but also the principle of rationality. The principle of rationality requires that administrative decisions should be reasonable, including fairness and impartiality, consideration of relevant factors and compliance with the principle of proportionality. The principle of proportionality here refers to the making of an administrative penalty, which should be in line with the legal purpose, be appropriate, and take the way that minimizes the damage to the parties. For the behavior of climbing over the wall itself, warnings and fines can act as a deterrent and punishment. If all the income from accessing the overseas Internet based on vpn technology is determined to be illegal and needs to be confiscated because of illegal access, then a large number of domestic freelance practitioners, such as cross-border trade employees, oil pipeline and other platform self-media practitioners, will fall into the plight of breaking the law and labor income may be confiscated.
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There are risks in investment, so you need to be cautious about currency speculation. Although currency speculation over the wall is a common operation in the currency circle, there is still a risk that income will be confiscated. Therefore, knowing some background knowledge of the basis of punishment can help you defend your rights and interests in extreme circumstances.
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