Yang Zhibo

　　(Northwest University of Political Science and Law, School of Criminal Law, Xi’an, Shaanxi 710199)

　　Author’s Introduction: Yang Zhibo (1991-), male, from Baoji, Shaanxi Province, doctor, lecturer at Northwest University of Political Science and Law, mainly engaged in the study of criminal law and criminal research.

　　Funding Project: National Social Science Fund Key Project ‘Theoretical Basis and Path Selection for the Modernization of the Legislation of Chinese Criminal Law’ (18AFX013)

　　Abstract: The act of obtaining Bitcoin through illegal means constitutes property-related crimes. Bitcoin itself is not a prohibited item and belongs to ‘property’. With the update of scientific concepts and the development of the times, property cannot be interpreted as tangible objects alone. Considering the independence and particularity of cyberspace, it is recognized that Bitcoin is an intangible object produced in cyberspace, which will not violate the principle of legality of crimes and penalties, and there is a possibility of managing Bitcoin. Due to the characteristics of the blockchain system such as non-tamperability and anonymity, it is impossible to deduce the private key from the public key and address generated by the private key. As long as it passes the confirmation of other network nodes, possessing the private key means having the possibility to manage Bitcoin. In terms of completion, it should be identified typologically based on the ‘loss of control’ theory. If the victim has not backed up the private key, the completion of the crime is established at the time the actor acquires the private key. Otherwise, only when the actor uses the illegally obtained private key to perform a digital signature and submit it to the blockchain for verification at the time of requesting the transaction can the completion of the property crime be established. Because at this time, the victim has lost control over the Bitcoin, and whether the Bitcoin can be recovered entirely depends on luck.

　　Keywords: Blockchain; Bitcoin; Intangible objects; Management possibility; Completion

　　Chinese Library Classification Number: D924

　　Literature identification code: A

　　Article number: 1009-5837(2022)02-0025-08

　　*Received date: 2021-07-05

　　Citation format: Yang Zhibo. ‘Regulation of Criminal Law on Illegal Acquisition of Bitcoin in the Era of ‘Blockchain+'[J]. Journal of Taiyuan University of Technology (Social Sciences Edition), 2022, 40(2): 25-32, 122.

　　Blockchain emerged with Bitcoin and serves as the underlying technology to ensure the successful operation of Bitcoin transactions. The essence of blockchain is a decentralized ledger database with characteristics such as decentralization and non-tamperability. In the blockchain network, each node can record the information of the entire ledger, which is not easily controlled by anyone. Moreover, once a piece of information is verified and finally added to the blockchain, it is basically impossible to be tampered with. These characteristics of blockchain can effectively ensure the authenticity and security of information, and thus it has gradually been applied to daily fields such as logistics, medical care, and food safety, indicating that the era of ‘Blockchain+’ has quietly arrived. In the financial field, which is the earliest and most mature application of blockchain technology, Ethereum, Litecoin, and other cryptocurrencies have相继 emerged since the appearance of Bitcoin. Any online casino supported by blockchain technology as the underlying technology can be called ‘cryptocurrency’, because blockchain technology operates through encryption algorithms. Due to the high value of these cryptocurrencies, the number of cases involving illegal acquisition of Bitcoin and other cryptocurrencies through theft, fraud, and other illegal means has also been increasing, and the social harm is gradually increasing. Such behavior may constitute computer-related crimes such as illegal acquisition of computer information system data. Although some scholars believe that the act of stealing Bitcoin cannot constitute the crime of illegal acquisition of computer information system data because this crime belongs to the crime of disrupting public order, and stealing Bitcoin does not disrupt public order, it mostly infringes on individual legal interests (see: Deng Jianpeng. Legal Thinking on the Illegal Fundraising Problem of ICO[J]. Journal of Jinan University (Philosophy and Social Sciences Edition), 2018(8): 45). However, Article 1, Paragraph 4 of the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Endangering the Security of Computer Information Systems clearly points out that ‘where the illegal gains exceed 5,000 yuan or the economic losses exceed 10,000 yuan’, it shall be deemed as ‘severe circumstances’ as stipulated in Paragraph 2 of Article 285 of the Criminal Law, and it shall constitute the crime of illegal acquisition of computer information system data. The act of illegally acquiring Bitcoin and other cryptocurrencies usually brings in economic benefits of tens of thousands of yuan, and there is no obstacle to establishing the crime of illegal acquisition of computer information system data. However, whether such behavior can be defined as a property crime is controversial and worthy of further study.

　　根据中国人民银行等五部委发布的《关于防范比特币风险的通知》，比特币被定性为一种特定的虚拟商品。商品本身是一种为了满足人们的需求、可被用于交换、具有价值和使用价值的劳动产品，比特币的商品属性符合财产罪的行为对象要求[1]，是作为财产犯罪客体的“公私财物”。我国有学者对此提出反对意见，认为根据我国相关法律法规的规定，比特币属于违禁品，不能被视为刑法所保护的财物；但另一方面却认为刑法不是必然为了保护某种法益才去打击犯罪，刑法真正的任务在于打击犯罪以维护社会秩序。具体言之，刑法打击盗窃比特币的行为并不是为了保护持有者对其所属比特币的利益，而是为了打击盗窃行为本身，是为了通过打击盗窃行为来维护社会的稳定。从而间接承认窃取比特币的行为构成盗窃罪[2]。可是，这一观点存在如下问题。首先，比特币本身并不属于违禁品。尽管中国银行等七部委于2017年颁布的《关于防范代币发行融资风险的公告》中指出，比特币等代币或“Online casino and How to find it ”不由货币当局发行，不能也不应作为货币在市场上流通使用，且有自该公告发布之日起，各类代币融资活动应当立即停止，任何代币融资交易平台不得从事法定货币与代币、“Online casino and How to find it ”相互间的兑换业务等规定。2021年国务院副总理、金融委主任刘鹤在国务院金融稳定发展委员会第五十一次会议上进一步强调要打击比特币挖矿和交易行为[3]。随后，内蒙古、青海及四川等地相继关停了加密货币挖矿项目。但是，目前为止并没有相关法律法规规定持有比特币等加密货币本身是非法的。中国银行原副行长王永利在近期谈到比特币时也表示，比特币作为一个投资品是可以持有的[4]。因此，不能直接将比特币视为违禁品，从而将持有比特币行为与持有假币、毒品和淫秽物品等行为相等同。其次，如若采纳上述观点，认为将窃取比特币的行为定性为盗窃罪不是为了保护持有者的利益，那么似乎事后应当没收行为人非法获取的比特币及相关联的赃款，而不是返还给此前的比特币持有人，这显然也是不合适的。

　　In countries such as Germany and Japan, the view that property is limited to tangible objects occupies an absolute mainstream position. The ‘Substantial Object Theory’ points out that ‘property’ is an object that occupies a certain physical space, including solids, liquids, and gases in three forms. In contrast, the ‘Manageability Theory’ holds that property not only includes tangible objects, but also any object that can be perceived by human senses and controlled by human power belongs to ‘property.’ If the ‘Substantial Object Theory’ is adopted, since cryptocurrencies such as Bitcoin do not occupy physical space in the real world and do not belong to solids, liquids, or gases, the act of illegally obtaining Bitcoin cannot constitute a property crime. However, this article believes that the view of the ‘Substantial Object Theory’ is worth questioning, and the specific reasons are as follows.

　　1. The basis for the ‘Substantial Object Theory’

　　The view of the ‘Substantial Object Theory’ originated in Germany. In 1870, in response to the question of whether the theft of electricity constitutes the theft of ‘property,’ German case law held that identifying intangible objects such as electricity as property violates the usage habit of the term ‘property,’ which must be tangible objects. The act of stealing electricity can only be regulated by legislation. Therefore, Article 248c of the German Criminal Code established a separate offense of stealing electricity, which coexists with the offense of theft stipulated in Article 242. This legislative model has had a profound impact on the criminal codes of countries such as Japan and South Korea. The Japanese Criminal Code stipulates in Article 235: ‘The theft of someone else’s property is theft.’ According to the wording of this article, it does not necessarily mean that property is interpreted as tangible objects. However, Article 245 stipulates: ‘In the crimes of theft and robbery, electricity can be considered as property.’ In criminal law theory, expressions such as ‘can be considered as…’ are usually considered legal fictions. Therefore, most Japanese scholars argue that Article 245 is a legal fiction. Some views suggest that it is unreasonable to treat this article as an illustrative provision. Starting from the wording of Article 245, it is argued that the article should not be used as an example regulation. From the perspective that electricity is not property but is only treated as ‘property’ as an exception, energies such as heat and cold air, which are not electricity, can only be excluded from the category of ‘property.’ Due to the existence of Article 245, many Japanese scholars, although acknowledging that the ‘Manageability Theory’ has a certain degree of rationality, still advocate for the ‘Substantial Object Theory’ as more appropriate, thus excluding electricity, heat, virtual property, and other things from the scope of property, unless there is a special provision in the criminal law.

　　Similar to Japan, Article 329 of the Korean Criminal Code also states that the object of the crime of theft is property. However, Article 346 also stipulates: ‘In the crimes of theft and robbery, any power that can be managed is considered as property.’ Compared to the provisions of the Japanese Criminal Code, the Korean Criminal Code does not only exceptionally consider electricity as property, but any power that can be managed can be regarded as the object of the crime of theft, thus including other forms of energy such as heat into the scope of ‘property.’ However, if it is neither a tangible object nor a power that can be managed, the general view in Korea also holds that it does not belong to property. The reason for this is still to consider Article 346 as a legal fiction, and to believe that property本质上 must be tangible objects. Based on the above view, Bitcoin is not suitable to be identified as property.

　　The crux of the ‘Substantial Object Theory’

　　It should be considered that in the era when the ‘theory of tangible things’ was proposed, the view of limiting the concept of property to tangible things could still be logically consistent. However, it is obviously problematic to apply this view unchanged to today’s society. At the end of the 19th century, influenced by the physics concepts of the time, the German Imperial Court believed that energy did not have physical properties, so electricity was not a thing, and could not be applied to the provisions of theft crimes, and it was necessary for the legislator to fill this legal gap to avoid violating the principle of legality of crimes and penalties. Although subsequent physics development has broken through the past dualistic view of ‘matter’ and ‘energy’, considering them indistinguishable, the German criminal law community still believes that energy is not property, the reason being that from the perspective of norms, property must be an object that can be directly taken by hand or through tools, while energy can only be felt (such as the sensation of electric shock), but cannot be taken away. Therefore, even though the view of physics has changed, the criminal law norms and provisions derived from the actual phenomena of crime still remain in the old thinking of tangible things to consider what is movable, thus considering it necessary to deal with the protection needs of energy through legislation [6]. It can be said that this concept is influenced by natural science and tries to build a permanent criminal law system to solve all future problems. And if the connotation of a concept with a fixed scope is changed, it will inevitably have some impact on the already formed criminal law system. Therefore, the above conclusion naturally arises.

　　However, the connotation of a certain concept is not immutable. With the update of scientific concepts and the development of the times, the connotation of the concept must also be adjusted accordingly, otherwise it is impossible to solve the large number of new problems that arise in practice. Therefore, it is reasonable to expand the interpretation of the scope of ‘property’. Many scholars have pointed out the defects of the theory of ‘tangible things’ and put forward the ‘physical management possibility theory’, but this theory is generally believed to have physical management possibilities only for tangible things, such as electricity and heat energy, and other things that have management possibilities in terms of affairs are not considered ‘property’. This theory breaks through the rigid thinking of strictly distinguishing ‘matter’ and ‘energy’, and such an interpretation of the ‘physical management possibility theory’ was basically appropriate in the era without or with underdeveloped networks. However, the rapid development of the Internet and information technology has促成的当今社会成为网络化的社会，real space and network space coexist in parallel, and the independence and particularity of the network space cannot be ignored. The misjudgment of taking real space as the criterion for network space. Bitcoin and other network virtual objects originate from the network and occupy an independent space in the network. Although they lack material entities in the natural world, they are also special, objective and real ‘things’, and not just exist in people’s concepts. As long as a certain network virtual object can be managed by the holder and meet other constituent elements of property crimes, it should be considered as ‘property’. From this perspective, the management possibility of virtual property is not only the possibility of administrative management, but also the possibility of physical management [7]. It is not enough to understand the objects that can be physically managed as those that must exist in the natural world with material entities.

　　There are scholars who adhere to the theory of tangible objects, arguing that the basis for the theory of management possibility is not clear, and it is impossible to delineate the boundaries of whether something belongs to property. From the perspective of maintaining the clarity of the concept of property, the theory of tangibility is more appropriate[8]. It is not the case that a theory is the most reasonable just because it is the most clear in identifying crimes. The specific scope of a concept is relatively vague before it is typified. However, it cannot be denied that the necessity of a new concept exists, and attention should be paid to how to adopt a typification standard that can reasonably define the scope of application of related concepts, achieving a balance between timeliness and clarity. Moreover, if adopting the theory of management possibility in Germany, Japan, and other countries would conflict with the criminal laws of those countries, China’s criminal law has not established regulations similar to ‘treating electricity as property’, so there is no need to be拘泥 to interpreting property as only tangible objects, and it will not violate the principle of legality of crime and punishment. Therefore, compared to the theory of tangible objects, the theory of management possibility is basically appropriate.

　　1. The main reasons

　　The general view in Chinese criminal law theory holds that property in criminal law includes three types: tangible objects, intangible objects, and property interests. Since Bitcoin is classified as property but is not a tangible object, it can only be categorized as intangible objects or property interests. If the theory of management possibility is adopted, it is inevitable that there will be ambiguity in distinguishing between intangible objects and property interests. Although both property interests and intangible objects share intangibility, they cannot be arbitrarily confused. Generally speaking, property interests refer to interests in property beyond tangible objects, which are intangible and relate to property, including the increase of positive interests (acquisition of claims) and the reduction of negative interests (decreasing or exempting debts)[9]. It is evident that property interests are usually presented in the form of claims, which requires the existence of both creditors and corresponding debtors. The view that Bitcoin should be included in property interests argues that Bitcoin is an unregistered security. In the application scenario of Bitcoin, although the transaction settlement is in the form of Bitcoin, operators must convert the obtained Bitcoin into a specific amount of legal currency to ultimately realize the economic benefits aimed at by the transaction[10]. In contrast, some views hold that unlike traditional virtual goods such as QQ coins, these virtual goods are purchased by holders from the issuing company and have property interests with a claim nature, while Bitcoin is more similar to intangible objects[2].

　　This article believes that the ‘intangible object theory’ is more appropriate, and the main reasons are as follows. Firstly, as a type of securities, a negotiable instrument is a debt incurred by the specific issuing authority. Unlike negotiable instruments, the individuals or institutions that can exchange Bitcoin for cash are not the issuers of Bitcoin. Moreover, there are numerous individuals or institutions that can exchange Bitcoin for cash, which are not specific, and Bitcoin holders can make independent choices, so Bitcoin cannot be equated with negotiable instruments, and the exchange of cash cannot be regarded as a performance of debt, and the institutions or individuals who exchange cash are not debtors. The fact that Bitcoin and cash can be exchanged with each other actually belongs to a commercial property exchange behavior, and the smooth progress of the transaction is based on the trust mechanism established by the blockchain distributed accounting technology. Secondly, there are no other debtors. Although Bitcoin has been stored as a virtual commodity in the blockchain network by the issuer before it is exchanged for cash, the cyberspace or the issuer of Bitcoin clearly does not belong to a debtor, because Bitcoin holders cannot claim a claim against these entities. Finally, many properties need to be exchanged for cash in order to ultimately obtain economic benefits, but this does not affect classifying them as tangible or intangible objects. In summary, Bitcoin is neither a tangible object nor a property-related interest, but a type of intangible object that arises in the cyberspace. Individuals can directly enjoy ownership of Bitcoin through legal means of possession. The virtual network properties owned by natural persons can become the object of property rights because their legal nature is that of property, belonging to virtual objects [11]. It is not only objects that have a direct and tangible impact on the objective world that belong to intangible objects.

　　2. Stealing Bitcoin constitutes the crime of theft

　　Since Bitcoin is a type of property, the act of stealing Bitcoin should constitute theft. However, there is an opinion that although digital currencies like Bitcoin have business and legal management possibilities, they cannot be interpreted as the object of crimes such as theft, embezzlement, and proceeds of crime, but can only constitute fraud and other profit-related crimes [12]. The premise of this view is that property crimes are divided into property crimes and profit-related crimes according to the different objects of behavior. The object of property crimes is property, while the object of profit-related crimes is property-related interests. Among them, crimes such as theft and embezzlement can only be property crimes, with the object limited to ‘property’, while crimes such as fraud and blackmail can be both property crimes and profit-related crimes, that is, the object is ‘property’ or ‘property-related interests’. This classification standard occupies a dominant position in Germany and Japan. As mentioned in the previous text, the common view in Germany and Japan also limits the concept of property to tangible objects. Because Bitcoin is not a tangible object, the act of obtaining Bitcoin illegally cannot constitute a property crime.

　　However, this classification standard is still closely related to the legislative systems of Germany, Japan, and other countries. Taking the typical crimes of theft and fraud as a comparison, the criminal codes of Germany, Japan, South Korea, and other countries explicitly stipulate that the object of the crime of theft can only be property, and the object of the crime of fraud is property or property-related interests. If Bitcoin is not considered property and cannot be identified as belonging to property-related interests, then all crimes of illegally obtaining Bitcoin cannot be established as property crimes. This conclusion of criminal punishment does not meet the expectations of the public and is also not conducive to effectively combating illegal acquisition of Bitcoin and other cryptocurrencies. Therefore, some argue that Bitcoin belongs to a type of property-related interest and constitutes a profit-type property crime. However, even if Bitcoin is regarded as a property-related interest, it will still cause loopholes in punishment. Because the same illegal means of obtaining Bitcoin, the act of fraudulently obtaining Bitcoin can constitute the crime of fraud, while the act of stealing Bitcoin cannot constitute a crime, and the emergence of this situation is obviously unreasonable. Moreover, the criminal law of our country has neither established a crime of stealing electricity outside the crime of theft nor set property and property-related interests in parallel. The term ‘property’ in the criminal law of our country has a large capacity and belongs to the general concept of property. Therefore, considering Bitcoin as an intangible object and affirming the establishment of crimes such as theft is not a problem.sports betting victory and Where is it

　　Since Bitcoin is a property, it must meet the three basic characteristics of property, namely, the possibility of management, transferability, and value [7]. As for the issue of valuelessness, some argue that Bitcoin lacks value because its transaction scope is concentrated among Bitcoin players, and its ‘rollercoaster’ price fluctuations also cannot reflect an objective value [13]. Although the prices of virtual objects fluctuate up and down, this cannot be a reason to negate their value or price. If only the stability of the price of the object is taken into account for calculation, then objects such as artworks also cannot become the objects of protection under criminal law [14]. Abroad, an increasing number of websites and physical stores can pay directly with Bitcoin, and there have also been cases of Bitcoin being used as wages (3). For example, on January 10, 2020, after several months of discussion, the National Basketball Association (NBA) decided on January 13 to pay the salary (a total of 34.4 million US dollars) of Spencer Dinwiddie, a player from the original Brooklyn Nets team, in the form of Bitcoin. Although Bitcoin does not have the above-mentioned uses in our country, the holder can obtain corresponding consideration by trading Bitcoin abroad, and can also use Bitcoin for consumption in countries where Bitcoin payment is legal, which fully demonstrates the value of Bitcoin. In addition, when determining the amount of crime after the fact, it will not be confused with the Bitcoin legally held by the perpetrator. Because of the public ledger feature of the blockchain, the transaction details of Bitcoin have been publicly verified and will not cause difficulties in identifying the amount of crime. As for transferability, as a specific virtual commodity, Bitcoin can be traded with each other in the blockchain network, naturally having the possibility of transfer.

　　There are two opposing views on whether the legitimate holder of Bitcoin has the possibility of management. The ‘affirmative theory’ argues that when the holder simultaneously activates the public key and private key in possession, it is possible to manage Bitcoin, such as payment and transfer [15]. In contrast, the ‘negative theory’ believes that Bitcoin, like game equipment, belongs to ‘virtual property’. Since players do not have ownership of game equipment, although players can log in to the game platform through corresponding accounts and passwords to manage game equipment, this management is not the same as the management of property in real life [13]. I believe that one of the main problems with the ‘negative theory’ is that it simply equates Bitcoin and other encrypted currencies with virtual property such as game equipment.

　　In property crimes, the ownership of property is a prerequisite for the possibility of management. The authoritative view in the field of criminal law holds that the true owner of game equipment is the game operator, and the game player only has the right to use the game equipment and other items [16]. Although many scholars have also confirmed that players have ownership of virtual property such as game equipment [7], it is generally believed that before players start playing, the game operator will sign a game service agreement with the players, in which it is explicitly stated that the ownership of game currency, equipment, and the like belongs to the game operator. For example, in the service terms of ‘Dream Journey’, it is clearly stated: ‘Game props include but are not limited to game currency, items, etc., and their ownership belongs to NetEase Company. Users can only use them in accordance with the law and game rules.’ Given the existence of similar provisions in the service terms of many games, it is difficult to confirm that players have ownership of game equipment. Although some scholars have proposed that players need to spend time and money to obtain new equipment in online games, and this right is not simply a right of use, but is close to ownership [17]. However, being close to ownership does not equate to truly owning it. Therefore, in my view, if it is believed that the protected interests of property crimes are the ownership of public and private property, the act of illegally obtaining virtual property such as game equipment is difficult to constitute a property crime. Game equipment, like Bitcoin, lacks physical entities in the real world and only exists in computer systems, and both belong to virtual property. On this point, it can be admitted that Bitcoin has ‘virtuality’. Since a concept is abstracted from the common characteristics of a class of things, the ‘negative theory’ concludes that since players do not have ownership of game equipment, the legitimate holder of Bitcoin does not have ownership of Bitcoin either.

　　However, Bitcoin belongs to a type of ‘cryptocurrency’ that has some key differences from virtual properties such as game equipmentsports betting victory and The latest website. For example, Online casino and How to find it does not use blockchain ledgers or any form of proof, and there is no blockchain; it must be generated and managed by a company or institution. In contrast, ‘cryptocurrencies’ have no institution responsible for the use of cryptocurrencies, except for the regulations provided in the cryptocurrency programming; no one enforces other rules; and there are no service terms other than the open-source license of the software[18]. Therefore, it is impossible to have terms similar to ‘The final ownership of this equipment belongs to the game operator.’ Although on January 4, 2009, Satoshi Nakamoto created the first block and received the first reward of 50 bitcoins, Bitcoin was thus born, the open-source software written for the development of Bitcoin has been rewritten multiple times since then, making it difficult to say that he is the author of Bitcoin. It is estimated that less than 1/3 of the computer code currently used for Bitcoin is written by Satoshi Nakamoto. Like many other elements that make up the Internet, in reality, Bitcoin belongs to everyone and does not truly belong to anyone[18]. This is not to say that no one can actually own Bitcoin and other properties, but rather that even those who created the blockchain network cannot say that they have obtained ownership of Bitcoin. And, to this day, it is unknown who Satoshi Nakamoto really is, and he disappeared after December 12, 2010, and no individuals or institutions have claimed ownership of all the bitcoins since then. Therefore, in the real blockchain network, after someone legally holds Bitcoin, they become the true owner of the Bitcoin in their hands. It can be seen that the ‘denial theory’ that negates the ownership of Bitcoin’s legitimate holders is inappropriate. There are also scholars in our country who propose that all owners issue and manage Bitcoin through the P2P network, which is clearly different from the Online casino and How to find it issued by game operators, Bitcoin is allowed to be used as a means of trade payment in many countries and belongs to real property. Therefore, the act of stealing electronic money and Bitcoin, both real properties, can be directly identified as theft[19]. This argument clarifies the essential differences between Bitcoin and other ‘cryptocurrencies’ and virtual properties such as game equipment and should not be equated with each other, which is appropriate.

　　The main problem with the ‘negative argument’ is the lack of in-depth understanding of the operational mechanism of the blockchain system. As mentioned in the previous text, the essence of blockchain is a decentralized ledger, with decentralization, irreversibility, and anonymity as its basic features. Irreversibility has two meanings: one is that the operational mechanism of the blockchain is irreversible, and the other is that the transaction data generated in the blockchain is unchangeable. The reason why the operational mechanism of the blockchain system has irreversibility is that it adopts the SECP256K1 algorithm from the ECC elliptic curve algorithm. The theoretical basis of elliptic curve is the one-way operation function in mathematical theory, which has the characteristic that forward calculation is easy, but reverse calculation is extremely difficult. In the SECP256K1 algorithm, reverse calculation is almost impossible to achieve. This algorithm also belongs to a type of asymmetric encryption algorithm. Unlike symmetric encryption algorithms (4) ‘symmetric key encryption’, also known as private key encryption or single-key encryption, which is named because the same key is used for both encryption and decryption. The key must be kept safe and never shown to others, which is why it is called a private key. Moreover, since the legitimate recipient of the secret also needs this private key, the key issue lies in how to safely share the key (see: Ling Li. Deconstructing Blockchain[M]. Beijing: Tsinghua University Press, 2019:42). The biggest difference between asymmetric encryption algorithms and symmetric encryption algorithms is that different keys are used for encryption and decryption. Among them, the public key is the public key, and the non-public key is the private key, which are generated in pairs and can encrypt and decrypt each other. That is, the information of the transaction Bitcoin is encrypted with the public key, and only the corresponding private key can decrypt it, and vice versa. For example, if A wants to transfer the Bitcoin transaction in his hand to B, B generates a public key with his private key and sends it to A, A uses this public key to encrypt and transfer the Bitcoin to B’s address, and B decrypts it with his private key after receiving it.

　　In a blockchain system, the public key is calculated based on the randomly generated private key through elliptic curve calculations. The public key is then encrypted through an encryption hash algorithm (mainly integrating SHA256 and RIPEMD160 algorithms) to obtain the address, which is also public and can be shared with others for receiving payments. Since the encryption hash algorithm is also a one-way operation function, in the blockchain, the private key can calculate the public key, and the public key can calculate the address, but the reverse cannot be deduced. It is the irreversible characteristic of the blockchain that ensures the security of Bitcoin transactions (5) unless someone can control more than 50% of the computing power in the blockchain network, causing the transaction to be reversed. With the current computing power, reversing a transaction is unrealistic and not cost-effective. Due to the fact that both the public key and the address are publicly disclosed to the entire network, as long as the private key is not leaked, you are the only person who can manage your Bitcoin, and you can independently decide whether to trade the Bitcoin you hold. If your private key is lost or obtained by others illegally, and you have not backed up the private key yourself, there will not be a customer service hotline to help you recover the password or backup the private key, which means your Bitcoin is also lost [20]. The blockchain system has anonymity, and only transfer records can be found on the blockchain network, but it is impossible to know who the entity involved in the transaction is, and it is almost impossible to retrieve it through related technical means. Of course, in the case of Bitcoin, considering that only the holder of the private key can transfer Bitcoin, it should be recognized that it has an exclusive dominion over Bitcoin. However, the exclusivity here is limited to the transaction and transmission of data. If we consider the relationship between the blockchain and the internet, it is not sufficient to affirm the exclusive dominion unless the participants in the internet acknowledge that the transfer is not yet completed [21]. That is to say, only after the confirmation of the transaction information by other nodes of the blockchain, the owner of Bitcoin can actually manage the Bitcoin in their hands, and the possibility of management is established.

　　As previously mentioned, after the actor obtains the private key, they still need to transfer the other person’s Bitcoin to their own Bitcoin wallet. To successfully transfer, it must be confirmed by other nodes on the blockchain. Specifically, when someone initiates a Bitcoin transfer, they must also broadcast the transfer information to all other nodes after encrypting it with the key. After the mining nodes accept this transaction, they first place it into their local memory pool for some basic verification, such as whether the Bitcoin in the transaction has been spent. If the verification is successful, the transaction information will be placed into the

　　The determination of the standard for the accomplishment of property crimes mainly involves three theories, namely the ‘Loss of Control Theory’, the ‘Control Theory’, and the ‘Loss of Control plus Control Theory’. The ‘Control Theory’ holds that the accomplishment of the crime occurs when the perpetrator actually controls the property. The ‘Loss of Control Theory’ believes that the loss of the victim’s control over the property at the time of loss is the accomplishment of the crime. The ‘Loss of Control plus Control Theory’ argues that the crime is accomplished when the victim loses control over the property and the property is already under the control of the perpetrator. In fact, since it is required that the perpetrator actually control the property, it indicates that the essence of the ‘Loss of Control plus Control Theory’ is actually the ‘Control Theory’. Therefore, it is only necessary to make a value choice between the ‘Loss of Control Theory’ and the ‘Control Theory’. Generally speaking, when the victim loses control over the property, the perpetrator immediately gains actual control over it. The conclusions drawn from the two views are not very different; the difficulty lies in confirming what circumstances can be considered as the loss of the victim’s control over the property. In some special types of property crimes, the conclusions drawn from the two theories may conflict, and the case of illegal acquisition of Bitcoin is such an example. If according to the view of the ‘Loss of Control Theory’, it seems that the accomplishment of the crime only requires the illegal acquisition of the victim’s private key. However, based on the ‘Control Theory’, it would be considered that the crime is accomplished only when the victim successfully transfers the Bitcoin to their own Bitcoin wallet. It should be pointed out that, considering the variability and complexity of blockchain transaction programs, some objective factors can also affect the determination of the time of accomplishment. For example, since private keys can be backed up, if the victim has backed up the private key, the victim has not completely lost the management of the Bitcoin before the perpetrator actually transfers it. In this case, it seems that only when the transfer is successful can the victim be considered to have lost the management of their Bitcoin. In summary, if one holds the ‘Control Theory’, it is believed that the accomplishment of the property crime occurs at the time when the perpetrator successfully transfers the Bitcoin; in contrast, if the ‘Loss of Control Theory’ is adopted, it is necessary to type the establishment of accomplishment, and how to make a typological distinction becomes a difficult problem.

　　1. Analysis of the rationality of the ‘Lose Control Theory’

　　The ‘Control Theory’ has four main criticisms of the ‘Lose Control Theory’: Firstly, according to Article 23 of the Criminal Law of our country, if the crime is not achieved due to reasons beyond the criminal’s will after the criminal has started the act, it is considered a failed attempt at crime. Here, ‘achieved’ refers to the success of the criminal’s act, not the loss of the victim’s interests [22]. Therefore, it is necessary to judge whether the crime is completed from the perspective of the criminal, that is, only when the property is successfully placed under the actual control of the criminal can it be regarded as the realization of the illegal possession purpose [23]. Secondly, the ‘Lose Control Theory’ lacks universality. In cases such as stealing telecommunication services, the criminal’s act of theft has been completed, but the victim may not have completely lost control over the stolen property [24], and the victim can still continue to enjoy telecommunication services. Thirdly, in the case of telecommunications fraud, after the criminals send out fraudulent messages, they discard the bank card used for receiving payment after obtaining a transfer from a victim, and later investigations show that other victims have been deceived and transferred money into this bank card. Regarding the criminal classification of the second transfer, according to the logic of the ‘Lose Control Theory’, it would be considered as completed fraud. However, since the criminal had no illegal possession purpose for the second transfer, not even a failed attempt at crime can be constituted, let alone the completion of the crime [25]. Although the victim has lost control over the money, the criminal has discarded the bank card and may have lost control over the money transferred afterward. In this situation, the ‘Lose Control Theory’ cannot be used to incriminate an act that does not constitute a crime.

　　The above criticism has the following problems. Firstly, the protected legal interest of crimes such as theft and property crimes is the ownership or possession of property. As long as the property is out of the victim’s control, it can be said that the ownership or possession of property has been violated. Moreover, property crimes belong to purpose crimes, and the ‘illegal possession purpose’ is an element of subjective excess, which does not require corresponding objective facts and will not cause the problem of incompatibility between subject and object. In order to emphasize the protection of ownership, the ‘successful’ in Article 23 of the ‘Criminal Law’ can be interpreted as ‘making the property successfully脱离 the control of the victim’, thus not violating the principle of legality of punishment. Secondly, after the electricity is stolen, the victim can still use the electricity through the power generation equipment, but there is no possibility of controlling the stolen electricity. Similarly, although the victim can still enjoy telecommunications services, the control over the stolen telecommunications fees has been completely lost. Therefore, even in this situation, using the out-of-control theory as a standard for completion is reasonable. Furthermore, in the case of group sending telecommunications fraud information, the actor has the purpose of illegally possessing the money of unspecified individuals before sending the information, that is, there is the ‘illegal possession purpose’, and there is a high possibility of foreseeing that other money will be transferred into the bank card after discarding the bank card, which is a general intent. The second transfer should be considered as a completed crime of fraud, but it can be appropriately mitigated in accordance with the particularity of the case.

　　2. Specific Identification of Completion

　　Based on the ‘out-of-control theory’, it should be considered that in most cases, due to the characteristics of blockchain systems such as anonymity and irreversibility, when the actor unlawfully acquires the private key, the victim loses control over Bitcoin. Therefore, it should be established that a property crime has been completed. However, it should also be acknowledged that there are exceptional situations, as mentioned earlier, the private key has the reproducibility. Some scholars believe that when the victim has backed up the private key, if the actor acquires the private key but does not use it immediately, since the victim can still manage Bitcoin, the property rights have not been substantially damaged, and there may be a crime but not necessarily a completed crime. Only after transferring or consuming the original Bitcoin will the victim lose complete control over Bitcoin, and a completed crime will be established [10]. It should be considered that although this view recognizes the impact of whether the private key is backed up on the completion of the crime, this is commendable, but the typification of the point of completion is still not complete.

　　Before successfully transferring Bitcoin, if the perpetrator has not used the private key to encrypt and broadcast the request for verification of the transaction to the entire network and has been discovered by the victim, the victim can immediately transfer their Bitcoin using the backed-up private key to avoid the illegal acquisition by the perpetrator. In this situation, the victim has not completely lost control of Bitcoin, even if the perpetrator has obtained the victim’s private key, it does not constitute a complete success. In addition, only when the perpetrator has signed the digital signature with the private key and broadcasted the request for verification of the transfer information, can it be considered as a complete success of property-related crimes. Because the blockchain network is multi-point connected, it may occur that one miner accepts a transaction request while another miner accepts another transaction request. After the perpetrator broadcasts to the entire network, the victim can request the network nodes to confirm the transaction information in the same way, and the number of nodes accepting the two transactions will definitely be different; while the blockchain system adheres to the

　　There are views that believe in a case of theft involving Ethereum, a type of encrypted currency, the attacker stored the stolen DAO coins on their Ethereum address. The DAO managers urgently updated the software program, and after the vast majority of nodes accepted the program update, a

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