Special Declaration: This article is an original work by Attorney Shao Shiwei. It represents only the personal views of the author and does not constitute legal consultation or legal advice on specific matters. For article reprints, legal consultations, or professional exchanges, please add: sswls66.
In the field of criminal justice, the legal characterization of virtual currencies is gradually revealing significant practical and theoretical dilemmas. In judicial practice, for cases involving virtual currencies with highly similar modus operandi, different adjudicatory bodies often reach significantly divergent conclusions, creating a reality of "different judgments for similar cases." This not only results in a lack of uniform standards for sentencing but may also directly affect the boundary between criminal and non-criminal conduct, thereby undermining the stability and predictability of criminal adjudication.
Meanwhile, existing theoretical discussions largely revolve around "property attributes" versus "data attributes," 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-launch tokens, and tokens whose value has dropped to zero, rendering theoretical analysis difficult to directly align with the adjudicatory needs of specific cases.
In light of this, this article attempts to respond to the aforementioned dual dilemmas and explore analytical paths with greater explanatory power, with the aim of promoting further discussion at both the practical and theoretical levels.
I. Author of this Article: Attorney Shao Shiwei
This article is relatively long, approximately 15,600 words. To facilitate reading, it is being published in four installments. The table of contents is as follows:
1. The Practical Significance of a Refined Discussion on the Criminal Law Attributes of Virtual Currencies
2. Conceptual Clarification: Property, Chattels, Property in the Sense of Criminal Law, and Proprietary Interests
3. Theoretical Foundation: Three Core Elements for Identifying "Property in the Sense of Criminal Law"
4. Criminal Law Evaluation of the Current Legal Attributes of Virtual Currencies
5. Framework Proposal: A Dual Review System of "Typology" and "Dynamism" for the Criminal Law Attributes of Virtual Currencies
6. Conclusion and Path: "Typological Identification" and "Dynamic Review" of the Legal Attributes of Virtual Currencies
1
Virtual Currencies: The Practical Significance of a Refined Discussion on Their Criminal Law Attributes
(1) Judicial Practice: The Urgent Need for Refined Defense Moving from "Different Judgments for Similar Cases"
Currently,Currently, the number of criminal cases involving Web3 and virtual currencies has risen significantly. However, in judicial practice, the characterization of such conduct faces major controversies.
First, the phenomenon of "different judgments for similar cases" is prominent.
For illegal acquisition acts with similar methods, a court in Region A might impose a heavy sentence of more than ten years for theft, while a court in Region B might impose a relatively lighter penalty for the crime of illegally obtaining data from computer information systems. This divergence in characterization directly leads to vast differences in sentencing, seriously affecting the uniformity and credibility of the judiciary.
Second, simplistic and "one-size-fits-all" determination models are unsustainable.
In the Web3-related criminal cases handled by Attorney Shao, it is common for the subject matter involved to amount to hundreds of millions or even billions of yuan. If all virtual currencies are indiscriminately recognized as "chattels" in the sense of criminal law, once convicted, defendants will face heavy sentences of more than ten years of fixed-term imprisonment or even life imprisonment. This may not only cause a serious imbalance between crime, responsibility, and punishment in individual cases but also overlooks the huge differences in value and risk attributes among different tokens.
For example, equating a "air coin" with insufficient trading depth that may drop to zero with a widely accepted stablecoin is extremely unjust in terms of sentencing.
Therefore, abandoning rigid either-or thinking and promoting case-specific, refined reviews based on token types and the specific status of each case is the core of defense work and an inevitable requirement for achieving unity between legal effects and social effects.
(2) Theoretical Limitations: A Deep Analysis Beyond the Binary Debate of Chattels vs. Data
Existing theoretical discussions and practical research mostly remain at the level of a simple binary debate on whether virtual currencies are "chattels or data," which is far from sufficient to support complex judicial practices. Specifically, there are two major theoretical gaps:
First, most discussions, after acknowledging that virtual currencies possess certain "property attributes," directly jump to conclusions on whether property crimes can be established, rarely asking: Even if a certain type of token is acknowledged as "chattels" in a broad sense, does it necessarily meet the stringent requirements for the object of specific property crimes (such as theft)—namely, "property in the sense of criminal law"? This theoretical laxity has led to simplified judicial reasoning.
Second, the research perspective suffers from severe limitations, defaulting to discussing only a few mainstream currencies such as Bitcoin. Existing research rarely discusses the different situations of various types of tokens and almost fails to include tokens not yet listed for trading, meme coins entirely dependent on community culture, or "zombie coins" that have lost liquidity in its analytical scope. This "generalization from partial examples" renders many conclusions lacking in universality.
For example, when a research report claims that "property attributes have become the mainstream understanding" based on cases involving Bitcoin and Ethereum, its conclusions are fundamentally inapplicable to the aforementioned token types with extremely unstable values or those lacking any public market value.
The dual dilemmas in theory and practice indicate that the discussion on the criminal law attributes of virtual currencies must move beyond vague overall characterizations toward refined analysis based on precise classification and dynamic assessment. This article merely provides a preliminary analytical approach for this under-explored field, aiming to spark interest and invite deeper reflection and more mature insights from legal colleagues.
2
Conceptual Clarification: Property, Chattels, Property in the Sense of Criminal Law, and Proprietary Interests
Clarifying basic concepts is the foundation for discussing how virtual currencies should be characterized. Therefore, we must start from legal principles as the starting point for discussion.
The theoretical framework for objects of property crimes constructed by Professor Zhang Mingkai provides a systematic approach for handling the application of criminal law to various items in judicial practice. This theoretical system takes manageability, transferability, and value as its three core elements. Through hierarchical conceptual relationships, it organically connects concepts such as "property," "chattels," and "proprietary interests," forming a complete logical chain for judging whether an item should be protected by criminal law.
This theory also provides theoretical support for resolving difficulties in conviction and sentencing in practice when discussing new types of objects such as virtual property in a broad sense (e.g., game currency, virtual equipment, cryptocurrencies, etc.).
Based on the views of Professor Zhang Mingkai and combined with the theory and practice of China's Criminal Law, the following distinctions and relationships regarding property, chattels, and proprietary interests can be outlined:
1. Property: The Sum of Economic Interests in the Broadest Sense
"Property" is a preliminary factual and economic concept, referring to the sum of all interests with economic value owned by individuals or entities. Its core criterion for judgment is objective "value," regardless of whether such value is lawful or protected by law.
For example, personal lawful savings and houses are property; similarly, drugs, gambling funds, trade secret information, and even business opportunities, due to their exchange value in black markets or specific fields, can also be regarded as "property" at the factual level.
This concept is the starting point for legal evaluation, but it cannot directly determine the intervention of criminal law.
When infringing upon these objects, criminal law protects not their "property ownership rights," but exclusive legal interests such as national security, citizens' personality rights and privacy rights, public health, and social management order.
For example, stealing state secrets constitutes the crime of espionage or the crime of stealing state secrets for overseas entities; illegal trading of human organs constitutes the crime of organizing the sale of human organs; although stealing drugs may, in specific circumstances, be fictitiously applied to robbery based on their factual "possession" status, the drugs are ultimately confiscated, and conviction is not based on property value. The core remains the protection of social legal interests against drug crimes.
2. Chattels: Property Objects Recognized by Law
"Chattels" represent the first contraction of the concept of "property" upon entering legal evaluation. It specifically refers to objects that can be dominated and controlled by human effort and possess economic value. The prevailing theory in China's criminal law adopts the "theory of manageability," so the scope of "chattels" is very broad, including:
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Tangible objects: Such as cash, mobile phones, vehicles, and other objects with physical forms.
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Intangible objects: Such as electricity and gas, which are natural energies without physical substance but can be managed and measured. Theft of electricity constituting the crime of theft is a classic confirmation of intangible objects as "chattels."
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Proprietary interests: Refers to other interests with economic value besides tangible and intangible objects, such as creditor's rights, equity interests, debt forgiveness, and paid services enjoyed.
Thus, "chattels" is a legal concept. Its scope has excluded a portion of "property" that possesses factual value but is not recognized by law as dominable objects. However, due to physical or legal attributes, they are incompatible with the typical behavioral patterns of certain property crimes and thus cannot become the objects of such crimes, though they may be protected by other property crimes or charges. For example:
Stealing evidence of creditor's rights itself (such as a paper IOU), where the perpetrator's theft aims to extinguish the debt. In this regard, depending on the nature of the document, it may be characterized as the crime of intentional destruction of property or the crime of stealing, snatching, or destroying official documents, certificates, or seals of state organs, rather than characterizing the perpetrator as committing theft directly against the creditor's right.
3. Property in the Sense of Criminal Law: The Specific Object of Property Crimes
This is the most stringentnormative concept in criminal law, specifically referring to those objects that can become the targets ofspecific crimes infringing upon propertysuch as theft, robbery, and fraud. An object belonging to "chattels" does not automatically equal it being "property in the sense of criminal law." The latter must comply with theconstitutive elements of the behavioral pattern。
For example, real estate (houses) is a typical "chattel," but because it is difficult to be "stolen" (transferred in location), it usually cannot become the object oftheft, but can become the object ofrobberyorintentional destruction of property. Here, "real estate" is a chattel, but it is not property in the sense of all property crimes (such as theft).
4. Proprietary Interests: A Key Component of Chattels
Proprietary interests are the most important and complex expansion of "chattels" under modern economic forms. They refer to interests whose content is satisfying property needs, which can be valued in money, and can be transferred or disposed of through legal acts.
Although the provisions of China's Criminal Law do not explicitly distinguish between "chattels" and "proprietary interests," the mainstream view and judicial practice both hold that proprietary interests should be included within the concept of "chattels."
For example, in the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Embezzlement and Bribery[i], the Supreme People's Court and the Supreme People's Procuratorate explicitly included "proprietary interests" such as debt forgiveness and paid services within the scope of "chattels" in bribery crimes, thereby confirming the inclusive relationship between the two from a judicial perspective.
Common proprietary interests include creditor's rights, equity interests, securities, debt forgiveness, and paid services (such as tourism and membership services). It must be distinguished from "labor" itself: Directly defrauding unpaid labor does not constitute a property crime; however, enjoying paid services through deceptive means and refusing to pay the consideration is regarded as obtaining proprietary interests (i.e., "debt forgiveness").
In summary, in China's criminal law theory, "property" is the general term, and "chattels" is the broader concept under it that serves as the object of crimes and includes proprietary interests. Understanding this inclusive relationship is the basis for understanding the current controversy over the legal characterization of virtual property.
In this issue, we have established the starting point and logical premise for our discussion. However, whether an object can cross the normative threshold from "property" to "property in the sense of criminal law" requires a clear set of judgment criteria. In the next article, we will delve into Professor Zhang Mingkai's theory of property crimes, analyze the three core elements that "property in the sense of criminal law" must simultaneously possess, and systematically examine the contributions and limitations of major viewpoints such as the "data theory" and "chattel theory." This is a necessary step in applying abstract concepts to specific controversies.
[i] Article 12: "Chattels" in bribery crimes include currency, items, and proprietary interests. Proprietary interests include material interests that can be converted into currency, such as house renovation and debt forgiveness, as well as other interests requiring payment of currency, such as membership services and tourism. The amount involved in the latter shall be calculated based on the amount actually paid or payable.
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