The bigwigs in the currency circle are going to divorce, how to divide the virtual currency?

If the court decides that the two parties should divide the virtual currency, how should the price be determined?

Written by: Sun Yujie

As a product of e-commerce, virtual currency is widely used in the market economy and involves more and more fields. Due to the property attributes of virtual currency, how to characterize and divide this part of property in divorce disputes has increasingly become the focus of attention.

This article searches on the Judgment Documents Network, using [marriage and family affairs] disputes as the cause of action, and [virtual currency] as the key word. At present, only [9] cases have been retrieved on the Judgment Documents Network, and none of the cases involved this item. Identification and division of property. **

This article will discuss the division of virtual currency in divorce disputes in terms of the ownership of virtual currency rights and how to determine and divide its value in combination with other civil and criminal cases involving virtual currency.

I hope everyone can learn relevant knowledge, but try not to use it. After all, home and everything prosper!

1. Legal attributes of virtual currency

Virtual currency legally has property attributes. Article 127 of my country's "Civil Code" stipulates that if the law has provisions on the protection of data and network virtual property, follow its provisions. In specific cases, some courts have cited this provision, arguing that virtual currency is an online virtual property and therefore has property interests and should be protected by law.

For example, in the second-instance civil judgment of the Shanghai No. 1 Intermediate People’s Court ((2020) Xinghu 01 Minzhong No. 12524) on the unjust enrichment dispute between Li and Wang, the court held that the **USDT (USDT) involved in the case belonged to the network Virtual property is protected by law. **The law takes a positive attitude towards the protection of network virtual property. The disputed USDT (USDT) is a virtual object based on data, and the right holder can exclusively possess, control and use it. It is exchangeable and has the characteristics of a right object.

In addition, in criminal cases, some courts judged the defendants who took virtual currency as the crime of theft, which also affirmed the property attribute of virtual currency.

Second, the situation where the virtual currency belongs to the joint property of husband and wife

1. Purchase with joint property of husband and wife

According to Article 1062, Paragraph 1 of the "Civil Code of the People's Republic of China", during the duration of the marriage relationship, the income from production, operation and investment shall belong to the joint property of the husband and wife. **During the existence of the marriage relationship, buying virtual property with the joint property of the husband and wife is an investment behavior. Therefore, the property and the resulting income should be the joint property of the husband and wife. **

In this case, it is easier for the party proposing to divide the virtual currency to provide evidence, as long as it can prove that the expenditure was during the existence of the husband-wife relationship. **However, if the holder of the virtual currency purchased it privately and did not inform the other party of the specific situation, it will be more difficult for the other party to obtain evidence.

2. Income from personal property investment

According to the provisions of Articles 25 and 26 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Section of the "Civil Code of the People's Republic of China" (1), the income obtained by one spouse from investing in personal property belongs to the joint property of the husband and wife; The income of one spouse's personal property after marriage, except for the fruits and natural appreciation, should be recognized as the joint property of the husband and wife.

In this case, one spouse** buys virtual currency with personal property before or after marriage,** and conducts business activities during the marriage relationship (such as: buying and selling and other speculative investment behavior ) should be the joint property of the husband and wife, but if one of the husband and wife buys virtual currency with personal property before marriage, puts it aside or forgets it, and does not manage and trade it again, then the virtual currency The resulting natural value-added cannot be treated as the joint property of the husband and wife (It seems that there is a magic effect in holding the currency...).

In this case, the virtual currency holder needs to prove that the original funds for purchasing the virtual currency belong to personal property, and the party applying for division needs to prove that the virtual currency holder has managed the investment during the marriage relationship.

3. Determination of the value of virtual currency

If the court decides that the two parties should divide the virtual currency, how will the price be determined?

1. Determined by the amount of market transactions

In practice, it is one of the fairer ways to determine the value of virtual currency by the amount of market transactions. For example, in the first-instance criminal judgment of the People's Court of Xuhui District, Shanghai (2018) in No. 203, Xingchu, Shanghai 0104, for alleged theft, the court held that the public prosecution agency, based on the documentary evidence in the case, calculated the victim involved in the case according to the official selling price of the virtual currency of the victimized unit. The value of the stolen property, the ** calculation method and the conclusions obtained are objective, legal and valid, and this court accepts them.

2. Determined by the amount assessed and appraised by a professional appraisal institution

Determining the value of virtual currency by means of identification is also one of the commonly used methods in practice. For example, in the Qingshen County People's Court of Sichuan Province (2020) Chuan 1425 Xingchu No. 1, Li, Zhang, and Huang were involved in the crime of helping information network crimes. After the identification of the Computer Forensic Institute of Panshi Software (Shanghai) Co., Ltd., There are 18 levels of users participating in the "BHB" transaction MLM activity, the number of users is 7967, and the total amount of MLM funds is RMB 86511967.3425 [10941570.29 USDT (market value is about RMB 65649421.74), 16845.16883 ETH (market value is about RMB 16845168.83) , 160.6950709 BTH (market value is about RMB 4017376.7725)].

3. Determined by the amount of negotiation or bidding

In divorce disputes, taking into account litigation costs and time costs, both spouses can also give priority to negotiation or bidding to determine the ownership and corresponding value of the virtual property to be divided.

Fourth, the division method of virtual currency

If virtual currency is to be divided, how should it be divided? Is it distributed directly as virtual currency or converted into RMB?

1. Pay consideration

Paying consideration is one of the most common ways to divide property, so both parties can also use this method when dividing virtual property, that is, the party holding virtual currency will exchange the virtual currency that should belong to the other party as compensation.

2, the number of divisions

The quantitative division of virtual currency will not affect its transaction and valuation. Therefore, when dividing the property in a divorce dispute, the virtual currency can be divided in quantitative terms, and each party holds its own part.

Legal Basis:

Article 1062 of the "Civil Code of the People's Republic of China": The following property acquired by a husband and wife during the marriage relationship is the joint property of the husband and wife and is jointly owned by the husband and wife:

• Wages, bonuses, labor remuneration;
• Proceeds from production, operation and investment;
• Proceeds from intellectual property rights;
• Inherited or donated property, except for those stipulated in Item 3 of Article 1063 of this Law (property determined to belong to only one party in the will or gift contract);
• Other property that should be owned jointly.

Husband and wife have equal rights to dispose of common property.

Article 25 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Section of the "Civil Code of the People's Republic of China" (1): During the marriage relationship, the following properties belong to Article 1062 of the Civil Code "Other property that should be owned jointly" as stipulated:

(1) Income obtained by one party from personal property investment;

(2) The housing subsidies and housing provident funds actually obtained or should be obtained by both men and women;

(3) The basic pension and bankruptcy resettlement compensation that both men and women have actually received or should have obtained.

Article 26: The income generated by the personal property of one spouse after marriage, except for the fruits and natural appreciation, shall be recognized as the joint property of the husband and wife.

**Article 1063 of the "Civil Code of the People's Republic of China": **The following properties are the personal property of one spouse:

1. Pre-marital property of one spouse;
2. Compensation or compensation obtained by one party for personal injury;
3. The property determined to belong to only one party in the will or donation contract;
4. Daily necessities for one party;
5. Other property that should belong to one party.