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It should be rational to view domestic banks banning encrypted asset transactions

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Does the statement represent my country's official position?

Original title: "Rational Treatment｜Comment on Domestic Banks Banning BTC Transactions"

Original source: Xiao Sa

Recently, a bank issued a statement to protect the property rights and interests of the public, maintain the legal tender status of RMB, and prevent money laundering Due to the risk, users are prohibited from using the bank account for trading activities of virtual currencies such as Bitcoin and Litecoin, otherwise measures such as terminating the transaction and canceling the account will be taken. This news has caused waves in the currency circle-whether the bank has the right to make such a statement, whether it can represent the regulatory attitude, whether the virtual currency has received a negative legal characterization, and what impact it will have on the currency circle. Issues have been raised one after another. This article aims to analyze this for the reference of readers.

Does the statement represent the official attitude of our country?

First of all, it needs to be clear that commercial banks are limited liability companies with special financial licenses, including the four major banks, and the participation of state-owned assets will not change their essence as a commercial entity Attributes. The documents or statements issued by the bank do not belong to the law in a broad sense, let alone directly equate with the official attitude of our country.

As early as 2014, some banks have issued similar statements. As of now, more than ten users have denied using bank accounts for virtual currency behavior of trading activities.

If the recent statement can represent the official attitude, then this attitude was issued and implemented in 2013 by many ministries and commissions before the announcement of the banks. Article 2 of the "Notice of Risks" appears: "All financial institutions and payment institutions are not allowed to carry out business related to Bitcoin."

Sister Sa's team believes that, from the perspective of effectiveness, the recent statement of a certain bank is just to imitate the announcements of several banks that issued statements before, in order to avoid the regulatory authorities chasing There is no new official attitude or tendency to explain the expansion of "bitcoin-related business".

Does a bank have the right to stop providing services?

The statement of a certain bank made it clear that if it is found that the user uses the bank account for virtual currency transactions such as Bitcoin and Litecoin, the account transaction will be suspended and the account will be cancelled. and other measures.

According to the provisions of the first and second paragraphs of Article 4 of the "Commercial Bank Law", commercial banks take safety, liquidity and efficiency as their operating principles , Carry out self-management, take risks by yourself, be responsible for your own profits and losses, and self-discipline. Commercial banks conduct business in accordance with the law and are not subject to interference by any unit or individual.

Sister Sa’s team believes that commercial subjects have the right to choose their own partners, but they should bear the civil liability for breaching the agreement, unless there are laws and regulations restricting .

Therefore, the key to whether banks can ban virtual currency transactions is the second provision of the "Notice on Preventing Bitcoin Risks" (hereinafter referred to as "Notice") Whether the "financial institutions and payment institutions shall not carry out bitcoin-related business" can cover the meaning of prohibiting users from buying and holding bitcoin.

Based on the interpretation of the system and the purpose of the legislation, Sister Sa’s team believes that since the notice recognizes Bitcoin as a virtual commodity, allowing citizens to buy and hold Bitcoin is just right According to the proper meaning of the notice, the bank should not prohibit its account from being used to purchase virtual currency across the board.

However, if the meaning of the text is understood, if the user purchases bitcoin through the account opened by the financial institution, if the financial institution knows or should know this but does not supervise it, it is sure There is suspicion of providing bitcoin-related businesses.

In order to avoid taking responsibility, the inertial thinking of preferring to kill by mistake has caused various financial institutions and payment institutions to choose the latter explanation, and we have reservations about it .

Reason for Restricting Virtual Currency Transactions

The statement states that restricting accounts from engaging in virtual There are three reasons for currency transactions: to protect citizens' property, to maintain the status of RMB as a legal currency, and to prevent money laundering. But buying virtual currency, especially bitcoin, which is characterized as a virtual commodity, will not directly infringe on citizens’ property or destroy the legal currency status of RMB.

Sister Sa's team believes that the main reason for restricting virtual currency transactions should be the need for anti-money laundering - due to the strong concealment and anonymity of virtual currency, Certain criminals use digital currencies as a tool for money laundering.

In the process of citizens participating in the transaction of virtual currency and legal currency, since most of the legal currency transactions on the exchange are point-to-point transaction models, the legal currency obtained by citizens selling digital currency It may be the stolen money originally held by the perpetrator, but the source cannot be traced.

Furthermore, if the citizen knows that the criminal perpetrator is laundering money, covering up, concealing the proceeds of crime, and the proceeds of crime, but still participates in it, he may It constitutes the crime of money laundering as stipulated in Article 191 of the Criminal Law, or the crime of covering up and concealing criminal proceeds and proceeds of crime as stipulated in Article 312.

Views on virtual currency

Currently there is no conclusion on the nature of virtual currency , According to the difference in the transaction value and use value of each virtual currency, there are various terms such as currency, data, property, and commodity. According to its qualitative difference, the legal evaluation received in application will vary widely. However, combining the provisions of the notice and the tendency of practical judgments, Sister Sa's team extracted two relatively clear legal acts for understanding:

First, Citizens holding mainstream virtual currencies are no different from holding virtual commodities, such as Bitcoin and ETH, and it is not illegal.

Second, the occasional mainstream virtual currency OTC transactions are the behavior of citizens buying virtual goods, which is not illegal.

As for currency transactions, Defi and other financial businesses, depending on the nature, the conclusions are different. In the future, Sister Sa’s team will discuss the latest practice and academic views .

Written at the end

To solve the problems caused by virtual currency, we should rely on The establishment of a regulatory system, rather than ignoring an industry that does exist, or even making a one-size-fits-all negative evaluation.

Taking anti-money laundering as an example, the purchase or transfer of digital currency by natural persons is mostly carried out on digital currency exchanges. Both buyers and sellers are natural persons. If the target is small, It will be very difficult for banks to verify fiat currency transactions involving digital currencies. If the exchange is included in the regulatory system, according to its KYC records, the address is associated with the transaction subject and reported to the competent authority in a timely manner. Compared with the current attitude, it is undoubtedly more valuable to understand the facts and collect evidence.