Discussion On Some Issues About Money Laundering Crime By Virtual Currency

Virtual currency provides a new convenient way of money laundering crime. Virtual currency, especially the virtual currency which can be exchanged into cash, has great attractiveness for money laundering crime. The people by using virtual currency transfer the illicitly acquired money into the countries and regions which monitor this crime weaker, and in this way they can legalize the illicitly acquired money. With the rapid development of virtual currency market, money laundering crime by virtual currency will become a kind of more and more serious crime. However, money laundering crime by virtual currency's legislation is not created sufficient attention both in China and the international community. This paper is divided into four parts, the emergence of money laundering crime by virtual currency, the lack of legislation, the essentiality of legislation and the legislative proposals on money laundering crime by virtual currency.Ⅰ. The emergence of money laundering crime by virtual currencyIn this part, I analyze the reason of money laundering crime by virtual currency's emergence, and introduce this crime. The popular using of virtual currency leads to the emergence of this crime. Initial virtual currency was only one-way circulation, which was RMB→virtual currency→game coin→game value-added service→game coin→virtual currency. With RMB exchanged into virtual currency, virtual currency then could not be exchanged into RMB. But now because of the prevalence of third-party trading platforms, there are two-way circulations between virtual currency and RMB. With RMB exchanged into virtual currency, virtual currency then could also be exchanged into RMB. This has brought about a great new opportunity for money laundering activities. Money laundering crime by virtual currency is a special kind of money laundering crime. Money laundering by virtual currency refers to the use of virtual currency hiding or disguising the true nature, the source, the location, the flow and the transferring of the properties by the criminal acts, or assisting with any illegal activities for avoiding liability. Money laundering crime by virtual currency has characteristics of concealing, complexity, and specializing. Moreover, this crime is a kind of money laundering crime, and this crime is not only carried out through the internet.Ⅱ. The lack of legislation on money laundering crime by virtual currencyIn this part, I discuss the lack of domestic legislation and international legislation on money laundering crime by virtual currency. There is no legislation on this crime in both the Anti-Money Laundering Law and the Criminal Law Amendments. Money laundering crime by virtual currency in China has a lack of basic law's regulation. There's still no international legislation on this crime. The world has not recognized the importance of regulation on this crime. Since money laundering crime by virtual currency is often carried out through the internet, the information era which is brought about by the internet leads to transnational and international characteristics of this crime. In this sense, the countries in the world need to work together to combat this crime. For requiring cooperation among the countries in the world, this crime's international legislation system is needed. Then the issue of international criminal justice assistances can help to work together on combating money laundering crime by virtual currency.Ⅲ. The essentiality of legislation on money laundering crime by virtual currencyIn this part, I discuss the essentiality of legislation on money laundering crime by virtual currency from the essence of law's regulation and the concept of criminal law. From the essence of law's regulation, this crime's legislation is the demand of a good law. The existence of a good law is ahead of abiding by the good law. Only when there is the legislation on money laundering crime by virtual currency, people can forecast if his act belongs to this crime. And then, we can talk about abiding by the law voluntarily, and abiding by the legislation on this crime. Crime and penalty should be legislative, and this is the demand of the concept of criminal law. Its content is much more far-reaching than its literal meaning. The concept of criminal law is not only a provision, but also should be realized through whole criminal law. Persisting in the concept of criminal law, upholding the protection of human rights and restricting the state power, we must insist in legislating at first. In this sense, money laundering crime by virtual currency should be legislative with an inevitable essentiality.Ⅳ. The legislative proposals on money laundering crime by virtual currencyIn this part, I discuss the problems in legislation, the legislative model and the specific requirements of legislation.First of all, I talk about the problems in legislation on money laundering crime by virtual currency from the concept of criminal law. Crime and penalty should be legislative. This is an important principle in criminal law, and still it is the expression of the essence of law's regulation in whole criminal law. This concept of criminal law includes seven aspects. Legalism proves the essentiality of legislation on money laundering crime by virtual currency. Prohibition of retroactive law, prohibition of explaining on analogy, prohibition of absolute non-period on penalty, clarity, prohibition of improper punishment, prohibition of non-balanced and inhuman penalty proves the problems which we should pay attention to on this crime's legislation. In this part, I discuss these problems on the above six aspects.Secondly, I consider that there are two legislative models on money laundering crime by virtual currency. The first one is to regulate this crime in money laundering crime's provision of Chinese Criminal Law, and the other one is to establish a provision of this crime in Chinese Criminal Law. In view of particularity and tremendous harm of this crime, I advise that the legislature should establish a provision of money laundering crime by virtual currency in Chinese Criminal Law.Finally, I discuss the specific requirements of legislation on money laundering crime by virtual currency from four aspects. They are the nature of this crime, the constitution of this crime, the penalty of this crime and the international criminal judicial assistances of this crime.For the first aspect, the nature of money laundering crime by virtual currency is the breach of Chinese financial management order. By knowing the nature of this crime, the legislature can know clearly the purpose of legislation on this crime. In such circumstances, the legislature can establish a proper provision of money laundering crime by virtual currency. Still we can use this provision to prevent and combat this crime which breaks Chinese financial management order.For the second aspect, I analyze this crime's constitution on two sides: illegality and responsibility. On the part of illegality, since Chinese criminal provision in the Criminal Law includes both quality and quantity of a crime, the legislature should consider this point when they legislate against money laundering crime by virtual currency. Only when it meets the essence of law's regulation, meets the concept of criminal law, play a good role in protecting human rights, and is still in line with the purpose of Chinese Criminal Law, the illegality of this crime can reach to such a degree that it is worthy of Chinese Criminal Law to regulate the illegality. Legislation on this crime in Chinese Criminal Law should absorb negative elements of the constitution. In such circumstances it can reduce the number of this crime. This is the demand of protecting human rights. On the part of responsibility, money laundering crime by virtual currency should be intentional mentality. When the legislature legislates against this crime, they should consider the possibility of expectation. For lack of the possibility of expectation, money laundering act by virtual currency should not be considered as a crime, or the legislature should weaken the responsibility of the person.For the third aspect, I analyze the penalty of money laundering crime by virtual currency on two aspects: the main penalty aspect and the accessory penalty aspect. For legislating against this crime, the legislature may consult the legislation on money laundering crime. There are two ranges of the main penalty on money laundering crime. So the main penalty of money laundering crime by virtual currency should be less than five years'imprisonment or detention and five to ten years'imprisonment in serious cases. The benefit broken by this crime is not weaker than that of money laundering crime. Therefore, the maximum and minimum main penalty of this crime should not be lower than that of money laundering crime. I advise that the legislature should adopt the fine system of limited quantity. Since money laundering crime by virtual currency is a crime for profit, the accessory fine penalty can be used. The value of the accessory fine penalty is to make the penalty develop to the direction of mildness. The main penalty can be shortened by using the accessory fine penalty. This condition meets the modern essence of law's regulation. Moreover, the fine system of limited quantity is clear, and easy to use.For the fourth aspect, since money laundering crime by virtual currency is usually carried out through the internet,it has the characteristics of transnational and international. In such circumstances we have to consider the international criminal judicial assistances of this crime. The international community should develop international conventions, regional conventions and bilateral treaties on this crime, and gradually change international conventions into domestic law. Apart from the lack of international legislation, there are still two aspects in the following affecting smoothly developing of Chinese international criminal judicial assistances: the principle of dual criminality and the principle of impunity for the second time on the same thing. For smoothly developing the international criminal judicial assistances on money laundering crime by virtual currency, China needs to handle well with these two principles.