1. What is a smart contract
Smart contract is a popular blockchain term at present, and its popularity is accompanied by the fuzzy degree of its concept. Peter Todd (one of the developers of Bitcoin core) once said bluntly: "No one understands what a smart contract is, we should need an oracle to implement it." To understand smart contracts and the criminal risks behind them, , it is obvious that it is not advisable to speak to yourself under a discourse system built by yourself. You might as well review its development history and try to clarify what is an old problem and what is a new problem.
(I) Four stages of smart contract
If we understand a smart contract as a "contract" or "utensil" that "automatically achieve and fulfill transactions", then it is not a new thing. Even like many other legal things, its origins are religious. According to Heron's description in his book "PNEUMATIKA", as early as the ancient Egyptian temple in BC, there was a mechanism for automatically selling "holy water": as long as a coin was put into it, the plate could be tilted and a valve could be opened to make the holy water flow out until the coin slipped off the tilted plate. At this time, the balance lever was pulled back to its original position and the holy water stopped flowing out. Relying on people's respect, trust and fear of religion, this automatic sales agency solves the trust problem of "unmanned contracts", but as religion declines, this trust also dissipates.
By the 18th and 19th centuries, vending machines similar to modern times appeared. Relying on the mechanism provided by machines to ensure the security of goods and coins, people solved the trust problem of "unmanned contracts" to a certain extent. However, due to the limitations of the machine, it is prone to failure, use of counterfeit currency, or even directly destroyed by humans. This "unmanned contract" is ultimately difficult for both buyers and sellers to truly feel at ease.
By 1994, computer expert Nick Saab created the concept of smart contract in the modern sense: "Smart contracts are computerized transaction agreements that execute contract terms. The overall purpose of designing smart contracts is to meet common contract terms (such as payment terms, guarantee execution terms, confidentiality terms, and even execution terms), minimize intentional or negligent exceptions, and minimize the need for trusted intermediaries. Related economic goals include reducing fraud losses, arbitration and law enforcement costs, and other transaction costs." Compared with the mechanical era, such smart contracts are obviously safer, but their operation and dispute resolution still rely on the authority of one or more third-party. At the same time, it also lacks a "value system" to break the barriers between the interaction between the digital world and real world property.
In the era of blockchain, smart contracts generated based on blockchain have made up for the defects of the above-mentioned old smart contracts to a certain extent. On the one hand, with the consensus mechanism brought by distributed ledgers, data becomes highly credible and does not require the intervention of third parties; on the other hand, relying on the circulation of digital currency, smart contracts can interact with real-world properties.
(II) Operation architecture of blockchain smart contract
In essence, blockchain smart contract is a piece of code written on the blockchain, but we should observe it from the perspective of dynamic operation . Blockchain smart contracts include: (1) contract participants; (2) contract assets; (3) automatic state machine (responsible for the judgment of current resource state and the selection of contract transaction execution); (4) a collection of behaviors of a series of contract participants.
Specifically:
(1) Someone saves the completed program code written on the blockchain, and then sends a message to call the function, which can execute this smart contract on the virtual machine of each verification node;
(2) The smart contract periodically checks the status of the automatic state machine, and checks the state machines, transactions and trigger conditions contained in the contract one by one;
(3) When the transaction trigger condition is met, the transactions that meet the conditions will be pushed to In the queue to be verified, wait for consensus;
(4) The relevant transactions will spread to each verification node, and it will conduct signature verification to ensure the validity of the transaction. After the verification node reaches a consensus based on the rules, the transaction will be successfully executed, causing changes in the contract assets, and notifying the contract participants at the same time;
(5) The automatic state machine judges the status of the contract. If all transactions within the contract are executed in sequence, the contract status will be marked as completed and the contract will be removed from the latest block.
By sorting out the past and present of smart contracts, we can find two major characteristics of blockchain smart contracts: first, it is automatically executed by (rather than intelligent, it is an automated ), which is like its predecessors; second, it is based on blockchain technology, which not only brings new and more stable consensus mechanisms, but also may stimulate the emergence of new criminal means and new forms of crime.
2. As a criminal institution, smart contract
Whenever the criminal tool is iterated, we will always discuss issues such as "the difference between killing people with a kitchen knife in the past and killing people with a robot now". Due to the convenience, security, anonymity and irreversibility of blockchain, it is easily become a new type of criminal means of traditional crime. Regarding whether artificial intelligence can be used as the subject of criminal responsibility, Professor Jiang Su has proved it from the perspective of criminal law philosophy (see Jiang Su's "Artificial Intelligence as the subject of criminal responsibility: Criminal Law Philosophy" for details), and using smart contracts to buy murder, drug trafficking, and human trafficking constitutes corresponding traditional crimes, but there are still many new issues worth discussing. Let me give you a few examples to attract jade by throwing bricks.
first, it is the problem of fictitious smart contract transactions . On the one hand, criminals want to use the many conveniences of smart contracts to commit crimes, and on the other hand, they want to evade supervision and not expose the details of the crime (smart contracts are visible to everyone on the blockchain), and at this time they will choose to make a smart contract. For this kind of fictitious behavior: First, it does not attack or tamper with the smart contract, and does not constitute a computer-related crime; second, the relevant criminal transaction is successfully completed, because the fictitious smart contract behavior is not only a behavior that helps cover up illegal transactions, but also transfers the proceeds of the crime, it should constitute the crime of money laundering; finally, if the relevant criminal transaction is not completed, it should be determined to constitute a preparatory crime for the corresponding crime. Of course, this is suspected of early criminal preparation time point. After all, in a traditional case, the act of just a fictitious legal transaction obviously cannot reach the level of criminal preparation, but considering the particularity of the smart contract, the social harm it brings to crime is far more wide than traditional behaviors, so it is necessary to identify the preparatory time point for crime in advance .
Second, is the problem that knows . Using smart contracts to recruit accomplices is characterized by the fact that accomplices may be completely strangers, and subjectively, they may not even have any intention to contact each other. To give a simple example, the main culprit of drug trafficking can publish a recruitment for loading a package of items into a truck through a smart contract, and then publish a recruitment for driving a truck loaded with drugs to a specific location. Although the person who received and completed the recruitment participated in the same crime, there was no intent to contact each other and lacked evidence of two-way intent to communicate. There was no "spiritual encouragement and support" between each other, which had an impact on the implementation of the principle of full responsibility.
, the third is the platform responsibility issue . Although blockchain smart contracts are born based on a distributed platform, this does not mean that does not intersect with centralized network platforms (such as exchanges that provide financial services, custodial services, wallets, etc.).Article 286 of my country's Criminal Law stipulates the crime of refusing to fulfill the obligation to manage information network security, which gives the founders and managers of network platforms a new criminal law obligation to manage network security. Faced with the market for traditional crimes using smart contracts, criminal law does not allow platform managers to turn a blind eye or even condone them. Of course, to what extent does the management obligation and review obligation of require managers to identify the high risk of the relevant addresses, or there are higher requirements, which still need further exploration in practice. But it is undeniable that online platform managers cannot passively manage on the grounds that they are "completely incapable" of affecting the relevant criminal market, but should avoid the platform's administrative responsibilities or even criminal responsibilities with a positive and compliant mentality and means. The specific compliance directions can be divided into two: the first is to fulfill the obligation to identify harmful smart contracts and high-risk addresses; the second is to fulfill the obligation to protect smart contracts and blockchains themselves from being attacked by hackers at will.
written at the end
Whenever we face new things generated by blockchain, we always emphasize compliance awareness and compliance thinking. A technical utopia cannot truly take root in reality, but must be managed and supervised by the centralized platform - whether it is a commercial platform or a public power platform. Participants and platform managers of blockchain smart contracts should be conscious and prepared to face the legal risks that may arise in , especially criminal risks, in the vigorous development of .
or above is today's sharing, thank you readers! If you have any relevant legal issues that need to be discussed, please contact Xiao Sa's lawyer team.
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Xiao Sa, a vertical "technology + finance" in-depth legal service, appeal committee member of the China Internet Finance Association, director of the China Banking Law Research Association, special researcher at the Industrial Finance Research Base of the Chinese Academy of Social Sciences, part-time tutor of the School of Law of China University of Political Science and Law, first member of the 100-person Forum of Financial Technology and Shared Finance, a special member of the People's Venture Capital Blockchain Research Institute Committee, and a member of the "China Blockchain Industry White Paper" Writing Committee of the Information Center of the Ministry of Industry and Information Technology. He was named the best columnist of Weiyang.com, a columnist of Internet Finance News Agency, Babbitt, Caixin, Securities Times, Sina Finance, and Phoenix Finance.Office Email:
