智能合约伴生风险的类型研判与刑法应对

On the Judgment of the Types of the Risks Associated with Smart Contracts and Their Countermeasures in the Criminal Law

在区块链时代智能合约衍生出三类严重伴生风险:以智能合约为场景的利用代码规则行为、以智能合约为对象的侵害私钥行为以及以智能合约为手段的犯罪交易行为。现行《刑法》在应对智能合约伴生风险时存在行为属性不明、罪名适用争议以及犯罪治理困难等问题,场景风险所引起的行为属性不明源于法律安全与技术自由的价值博弈,对象风险所导致的罪名适用争议源自私钥与数字货币之间本体差异与价值关联的矛盾,手段风险所致的犯罪治理困难源于犯罪匿名与共犯信任的结合。应对这些风险需要分别从三个方面着手:智能合约应在个人自决的基础上划分为自治型与半自治型智能合约,并援用被害人同意理论合理划定犯罪圈;侵害私钥行为应划分为非法获取私钥行为与非法删除私钥行为,并对其刑事责任采取类型化的认定模式;设立非法编写智能合约罪能够有效阻止智能合约被用于违法犯罪,防范智能合约的手段风险。

In the era of blockchain,smart contracts may cause three kinds of seriously associated risks:the behavior of using code rules in the scene of smart contracts,the behavior of infringing private keys in the object of smart contracts,and the criminal transaction behavior by means of smart contracts.While dealing with the risks associated with smart contracts,The Criminal Law of the People's Republic of China is currently confronted with such problems as the unclear behavior attributes,the controversies over the application of charges and the difficulties in crime governance.The unclear behavior attributes caused by scene risks result from the value game between legal security and technology freedom,the controversies over the application of charges caused by object risks stem from the contradiction of ontological differences and value connections between private keys and digital currencies,and the difficulties in crime governance caused by the risks of means derive from the combination of crime anonymity and accomplice trust.To effectively deal with these risks,three countermeasures are supposed to be taken.First,smart contracts should be divided into autonomous and semi-autonomous smart ones on the basis of individual self-determination,and the victim consent theory can be used to reasonably delineate the crime circle.Second,the behavior of infringing the private keys should be divided into that of illegally obtaining the private keys and that of illegally deleting the private keys,and the criminal responsibilities should be classified into the distinct types.The establishment of the crime of illegally writing smart contracts can effectively prevent smart contracts from being used for illegal crimes and prevent the risks in the means of smart contracts.