China: OKEx chairman Xu Mingxing might be charged for illegal business

In recent, Chinese council has stated that OKEx chairman Xu Mingxing might be charged for illegal business. OKEx is an exchange located outside of the country but operated and managed in China. According to Article 7 of the Chinese Criminal Law, restriction shall apply to the crimes committed by Chinese citizens outside of the country, so it also constitutes a crime.

OKex is an exchange concentrating on futures trading, including Bitcoin, Ethereum, Litecoin, Bitcoin Cash, EOS (ref-links: according to OKex early statement that the last three cryptocurrencies mentioned ahead are more representative among other major cryptocurrencies based on the features, market cap and users).

There are more discussions. The administrator of the OKEx website and exchange might be suspected of white collar crimes by Chinese policies, the crimes involved may be:

1. Fund-raising fraud; The crime must be constituted by illegal possession. If only third party involved in this case and not directly occupied the investor’s property, then the charge cannot be established.

2. Inducing investors to trade futures contracts; by analyzing from the composition of crimes, requiring criminals to be special subjects, i.e. securities, futures exchanges, securities companies, futures brokerage companies or securities industry associations, the staff of the industry association or the securities and futures management department, may establish this crime. The subject of this case does not meet the conditions mentioned above, so this crime cannot be established.

3. Manipulating securities and futures markets; the statutory rights and interests infringe the order of securities and futures markets. Since cryptocurrency is not recognized in China policy as neither of them, it can be seemed as a commodity with investment attributes. Investing in the commodity through the platform involved does not infringe the order of the domestic securities and futures markets, so this crime cannot be established.

4. Illegal business; violation to the national regulations, conducts illegal business activities, disrupts market order. On September 4, 2017, the People's Bank of China, the Central Network Information Office, the Ministry of Industry and Information Technology, the State Administration for Industry and Commerce, the China Banking Regulatory Commission, the China Securities Regulatory Commission, and the China Insurance Regulatory Commission jointly issued the "Announcement on Preventing the Risk of Cryptocurrency Financing", clearly banned the Bitcoin and cryptocurrency trading. The ICO for financing, the subject involved in the illegal operation of such activities through overseas exchanges, coincides with the requirements of the crime.

In summary, the government are more likely to file a case for investigation on "illegal business" However, in the course of investigation, whether new evidence and facts will be discovered, resulting in changes and additions to the case.