In the field of criminal justice, the legal characterization of virtual assets is increasingly revealing significant practical and theoretical dilemmas. In judicial practice, adjudicatory bodies often reach markedly different conclusions in cases involving virtual assets with highly similar modus operandi, resulting in a reality of "different judgments for similar cases." This not only leads to a lack of uniform standards in sentencing but may also directly affect the boundary between criminal and non-criminal conduct, thereby undermining the stability and predictability of criminal adjudication.
At the same time, existing theoretical discussions largely revolve around the "property attributes" and "data attributes" of virtual assets, lacking a systematic deconstruction of the normative concept of "property in the sense of criminal law." Furthermore, they fail to effectively address complex practical forms such as meme coins, pre-issued tokens, and tokens whose value has dropped to zero, rendering theoretical analysis difficult to directly meet the adjudication needs of specific cases.
In light of this, this article attempts to respond to the aforementioned dual dilemmas and explore a more explanatory analytical path, with a view to promoting further discussion at both the practical and theoretical levels.
I. Author of this Article: Attorney Shao Shiwei
Inthe previous article, we categorized virtual assets into five basic types—such as "native crypto assets," "collateralized stablecoins," and "utility tokens"—based on their source of credit, and analyzed the intrinsic differences in their legal attributes. This constitutes the first static dimension of the review.
However, the evaluation in criminal cases must be based on the specific circumstances at the time the act occurred. Even within the same type, the immediate state of a token at the time of the incident—for example, whether it has lost liquidity, whether its value is highly unstable, or whether it has not yet entered the public market—can substantially affect the determination of its "property attributes." This article will unfold the second layer of review, namely "dynamic review," exploring how four key states specifically influence the criminal law evaluation of virtual assets, and finally summarizing the overall methodology that combines "typological identification" with "dynamic review."
Part II: Dynamic Review of the Property Attributes of Virtual Assets: Judgment Based on the Specific State of the Case
The aforementioned typological analysis establishes static analytical coordinates for determining the legal attributes of virtual assets. However, criminal justice deals with individual cases occurring in specific times and spaces. The immediate state of the virtual assets involved at the time of the incident can often directly alter the presence and strength of their "property" attributes. Therefore, on the basis of typological identification, it is necessary to introduce a dynamic state review to complete the final judgment on whether virtual assets constitute "property in the sense of criminal law." The core of this judgment remains returning to the three normative elements—possibility of control, possibility of transfer, and value—and assessing the degree to which they are substantively satisfied in the specific context.
I. Theoretical Premise of State Review: The Dynamic Leap from "Type" to "Individual Case"
The determination of the legal nature of virtual currencies is a dynamic normative evaluation process that proceeds from the abstract to the concrete and from the general to case-specific analysis. This process follows clear logical tiers:
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Starting Point: Technical Essence: Ontologically, all virtual currencies constitutedata within computer information systemsThis is their inseparable initial attribute.
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Screening for Property Attributes: Determining whether such data embodiesproperty interestsworthy of legal protection. This primarily depends on a substantive review of their "value" and "transferability," both of which may vary significantly across cases depending on the status of the tokens.
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Final Determination as Property under Criminal Law: Even if property attributes are preliminarily established, it is still necessary to examine whether they meet the constituent elements of specific property crimes (such as theft or fraud). The core consideration remains whether their "value" is sufficiently stable to support criminal quantification and sentencing. The determination at this tier hinges on thespecific market status and functional integrityHighly sensitive.
Any discussion detached from specific contextual conditions is untenable. A public-chain token with a high market capitalization during a "bull market" and the same token that has fallen to zero and been delisted during a "bear market" should be subject to vastly different legal assessments.
II. Review of Criminal Law Elements and Determination of Attributes under Key Status Dimensions
In light of the relevant disputed issues encountered by Attorney Shao in handling criminal cases in the Web3 sector, we may conduct our analysis from the following key status dimensions:
(1) Tokens Whose Value Is in a State of High Instability
Although such tokens have trading prices, their prices fluctuate violently (for example, intraday volatility often exceeds 20%). This is commonly observed in newly listed projects, meme coins, or assets embroiled in serious controversies.
The concept of "property" under criminal law requires that its value possessrelative stability and judicial measurability.Extreme price instability makes itexceptionally difficult to determine a reasonable baseline for the amount involved in the crime that is acceptable under the law.Should the price at the time of the theft, at the time the case arose, or at the time of appraisal prevail? Violent fluctuations may lead to significant discrepancies in the calculated amounts based on different points in time, directly affecting determinations of whether conduct constitutes a crime, as well as assessments of the severity of the offense. This undermines the foundation for precise sentencing based on the token's status as "property within the meaning of criminal law."
Under such circumstances, although its attribute as "property" exists,significantly weakenedIf judicial authorities insist on treating the matter as a property crime, they must provide special explanations regarding the determination of the amount involved (such as adopting an average price over a certain period). However, this approach still fails to fully resolve concerns about fairness. This very state of affairs constitutes a strong argument against simply equating such assets with traditional "property."
(II) Tokens that have lost access to public market pricing and trading channels
Such tokens have been delisted from all major exchanges, or their liquidity has completely dried up due to project failure, rendering them "zombie coins."
The loss of public trading channels means that theyhave lost an objective and fair market pricing mechanismTheir "value" becomes merely the subjective assumption of the holder, making judicial appraisal and determination impossible. Meanwhile, the economic "possibility of transfer" also vanishes—the recipient cannot liquidate the assets through public markets, meaning that such technical transfers do not produce the effect of transferring property interests recognized under criminal law.
Under these circumstances, the property attributes of the tokens have beensubstantially extinguishedIllegally obtaining such objects causes almost no punishable property loss. The harmfulness of the act lies entirely in the infringement upon the data itself. Therefore, Attorney Shao believes that if the tokens involved fall into this category, they should not be deemed to constitute property crimes such as theft or embezzlement by reason of office, but rather should be addressed under charges such as “the crime of illegally obtaining data from computer information systems and other related offenses.
(3) Tokens that lacked verifiable liquidity from inception
Such tokens may have been created and distributed, but never established liquidity pools on decentralized exchanges, or maintained only minimal pools insufficient to support normal trading, thereby lacking any substantive redeemability.
This condition fundamentally calls into question whether the token’s “value” has genuinely materialized. The absence of verifiable liquidity means there is no effective price-discovery mechanism or redemption commitment, rendering the purported “value” potentially fictitious. Meanwhile, the “possibility of transfer” possesses merely a technical shell without economic substance—what is received remains a symbol that cannot be liquidated.
Under these circumstances, the tokenis difficult to recognize as possessing valid property attributesIt more closely resembles a “data concept” or an unactivated entitlement certificate. Illegal acts targeting it would, in legal assessment, approach infinitely close to infringement upon ordinary computer data, thereby attracting charges related to data crimes.
(4) Pre-issuance tokens not yet entered into the public market
Such tokens are in a stage where private or public offerings have been completed but trading has not commenced, or where future listing plans have been explicitly announced but current trading is unavailable.
The core issue with such tokens is that ““expected value” does not equate to “existing property interests protected by criminal law” Although they may involve financing costs or over-the-counter agreement prices, such value has not been tested by the public market, and its realization is highly uncertain. Criminal law protects actual legal interests, not pure expectancy interests.
Prior to successful listing, theirshould not be characterized as property within the meaning of criminal lawThe act of illegal acquisition infringes upon the project party’s trade secrets (such as token allocation data) or its data control rights over future assets, and may involvethe crime of infringing trade secretsorthe crime of illegally obtaining data from computer information systemsThe determination of its property attributes must await the establishment of public market pricing and liquidity, after which a retrospective review may be conducted.
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Conclusion and Approach: “Typological Identification” and “Dynamic Review” of the Legal Attributes of Virtual Currencies
In summary, when determining whether a particular virtual currency constitutes “property” within the meaning of criminal law in specific cases, one cannot rely on its general name or category for a blanket conclusion. Such determination should be based on a dual review of its technical features, economic substance, and the specific circumstances of the case. A systematic and pragmatic review framework should include the following two indispensable steps:
First, typological identification: examining the source of the token’s value and its inherent risks.
It is first necessary to ascertain the core operational mechanism of the token in question.
Does it rely on decentralized consensus like Bitcoin, or on the asset reserve commitments of a centralized institution like USDT? Is it deeply tied to the credit of a single enterprise like FTT, or does it have specific uses only within a certain game or project? This assessment helps to preliminarily grasp the logic underlying the token’s value generation, the foundational support for its stability, and the specific risks it may entail (such as corporate credit risk or algorithm failure risk). This forms the factual basis for legal evaluation.
Second, status verification: examining the specific market and functional status of the token at the time of the incident.
This is key to preventing legal assessments from becoming detached from reality. Regardless of how a token is designed, its actual status at the time of the criminal act and thereafter must be examined:
Is its market price so extremely volatile that it is difficult to determine a baseline for sentencing? Has it been delisted by exchanges, thereby losing liquidity? Had its purported stabilization mechanisms or utility functions already failed at the relevant time (e.g., UST had lost its peg, or the related game had shut down its servers)? This step directly affects whether the two criminal law elements of “value” and “transferability” truly and fully exist in the case at hand, and whether the property loss can be objectively and reasonably determined through judicial proceedings.
Prudently determining the legal nature of virtual currencies in specific cases not only concerns the fair adjudication of individual cases, but also holds critical significance for unifying judicial standards and enhancing judicial credibility. Currently, there is inconsistency in the characterization of criminal cases involving virtual currencies, with differing judgments in similar cases occurring from time to time. One important reason for this is the lack of a clear and operable analytical framework. The “type-status” dual review method proposed in this article is precisely intended to respond to this practical need. Through refined case-by-case examination, it seeks to avoid mechanical, one-size-fits-all approaches in judicial adjudication, ensuring that the application of law can effectively combat various criminal acts carried out using virtual currencies, while remaining internally coordinated with China’s prudent regulatory policies on virtual currencies. This prevents de facto recognition or encouragement of illegal trading activities in such assets through criminal judicial practice.
To this end, we recommend that case-handling personnel, in addition to routinely preserving on-chain evidence such as involved addresses, private keys, and transaction hashes, should targetedly collect key materials that reflect the true status of the token at the time of the incident. This includes, but is not limited to: commissioning professional institutions or using public data to produce analysis reports on the token’s market depth, trading volume, liquidity conditions, and price stability during the period in question; verifying whether the token has been delisted from major trading platforms; and investigating whether the associated project was still operational at the time of the incident, and whether there were any major negative announcements or credit crisis events (such as issues with reserve asset audits or failures of algorithmic mechanisms). These materials constitute objective bases for judging whether “value” and “transferability” substantively existed at the time of the incident.
When reviewing cases and characterizing the conduct of perpetrators, case-handling personnel should also focus on demonstrating whether the involved tokens possessed the property attributes required for protection under criminal law at the time the acts were committed. The emphasis should be on the status of the involved tokens at that time, and whether protection under criminal law was necessary and feasible, rather than merely engaging in abstract discussions about whether virtual currencies are “property” or “data.”
The legal nature of virtual currencies is, in essence, a legal issue that requires prudent balancing between “data” and “property” based on the evidence in the entire case. In judicial practice, legal professionals should conduct specific analyses in light of the circumstances of each case, rather than applying uniform determinations across the board.
This is not only a requirement for achieving justice in individual cases, but also an inevitable path to maintaining the seriousness of criminal law, ensuring the effective implementation of financial regulatory policies, and ultimately enhancing social acceptance of judicial decisions in the context of new technologies. Adhering to this approach helps delineate the boundaries between criminal and non-criminal conduct, and between different offenses, within the complex landscape of technology and finance, thereby rendering judgments that can withstand scrutiny under both law and policy.
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