Are Web3 enthusiasts who physically travel abroad absolutely safe? A brief discussion on China's cross-border criminal jurisdiction and law enforcement
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Are Web3 enthusiasts who physically travel abroad absolutely safe? A brief discussion on China's cross-border criminal jurisdiction and law enforcement
Even if the perpetrator is physically abroad, they cannot escape prosecution under Chinese criminal law for crimes committed overseas against Chinese citizens.
Navigating Web3 tides with focused insightsBy Xiao Sa's Team
As technology continues to evolve and mature, blockchain networks represented by public chains such as Ethereum have increasingly demonstrated their potential as a global public infrastructure enabling peer-to-peer data transmission, zero-cost access, transparent and immutable information. These features highlight their promise as the foundation of the next-generation value internet. However, the core technical characteristic of decentralization also means that the entire network environment lacks effective regulation, leading to frequent occurrences of fraud, theft, money laundering, and other criminal activities—trends that are becoming increasingly internationalized and concealed. The existing cross-border criminal jurisdiction and enforcement systems, originally designed for traditional crimes, are gradually proving inadequate in regulating these new forms of offenses.
Xiao Sa’s team observes that this situation is now forcing countries around the world to significantly reform their traditional cross-border criminal jurisdiction and law enforcement frameworks. Today, we will explore from the perspective of China’s relevant legal provisions whether it is truly viable or reliable for Web3 practitioners ("Web3ers") to physically relocate abroad.
What Is Cross-Border Criminal Jurisdiction and Enforcement?
Before discussing cross-border criminal jurisdiction and enforcement, Xiao Sa’s team must clarify a fundamental concept: sovereignty. Within the entire system of international law, sovereignty is one of the most central concepts—indeed, the modern framework of international law is built upon the recognition, respect, and protection of state sovereignty. The subject of sovereignty is the "state," and enjoying sovereignty means that a state holds supreme and final authority within its own territory. However, this right is constrained by the principle of "equality"—regardless of size or strength, all states' sovereignty must be equally respected. This gives rise to an international legal obligation not to interfere in the sovereign affairs of other nations.
Based on this understanding of sovereignty, the exercise of jurisdiction can be divided into two categories: a state exercising rights internally and externally. Internal exercise of rights requires no explanation—it is a direct manifestation of national sovereignty and faces no obstacles in a well-governed country. External exercise, however, is different. If a country could freely extend its authority beyond borders without limitation, it would inevitably infringe upon the sovereignty of others. Therefore, cross-border criminal jurisdiction and enforcement—an act of exercising "enforcement jurisdiction" extraterritorially—are necessarily subject to strict limitations.
Over the past decade (particularly in recent years), certain developed countries led by a major Western power have leveraged their economic dominance to arbitrarily expand their jurisdiction. Using long-arm jurisdiction to criminally investigate and prosecute overseas companies and individuals represents a clear abuse of cross-border criminal jurisdiction and enforcement.
How Does China Conduct Cross-Border Criminal Jurisdiction and Enforcement?
In practice, if Chinese judicial authorities wish to conduct cross-border criminal jurisdiction and enforcement, they must first establish that China has jurisdiction over the suspect and the alleged criminal act. Second, they must request international legal assistance through formal channels based on valid international treaties, bilateral or multilateral mutual legal assistance agreements, or established precedents of judicial reciprocity.
1. Establishing Jurisdiction
Generally speaking, China bases its cross-border criminal jurisdiction on three principles: personal jurisdiction (over Chinese nationals), protective jurisdiction (over foreign nationals who harm China or its citizens), and universal jurisdiction arising from international treaties or obligations.
If a Chinese citizen commits a crime abroad, jurisdiction is typically established under the principle of nationality. According to Article 7 of China's Criminal Law: "A citizen of the People's Republic of China who commits a crime stipulated in this Law outside the territory of the PRC shall be subject to this Law; however, if the maximum penalty provided for under this Law is fixed-term imprisonment of less than three years, prosecution may be waived. This provision applies without exception to state functionaries and military personnel of the PRC."
If a foreign national commits a crime against the PRC or its citizens outside China, Article 8 of the Criminal Law provides: "Where a foreigner commits a crime against the State or a citizen of the People's Republic of China outside its territory, and the minimum punishment prescribed by this Law is fixed-term imprisonment of three years or more, this Law may apply, except where the act is not considered punishable under the law of the place where it was committed."
Universal jurisdiction has a very narrow scope of application and will not be discussed further at this time by Xiao Sa’s team.
In addition to legally establishing jurisdiction, Chinese judicial authorities must also review whether the suspect’s conduct qualifies as a crime under Chinese law before requesting foreign legal assistance. Specifically, they apply the "dual criminality principle." As a key component of customary international law, the dual criminality principle is a foundational standard in international criminal judicial cooperation. It holds that a requested state is only obligated to provide legal assistance when the conduct in question constitutes a crime under both the requesting and requested states’ domestic laws and warrants penal sanctions.
The "dual criminality principle" is now widely applied in critical procedures of cross-border criminal jurisdiction and enforcement, including "investigation and evidence collection," "service of legal documents," "imposition of coercive measures," "extradition," and "transfer of criminal cases." For example, in the high-profile extradition case of Meng Wanzhou—the daughter of Huawei’s actual controller—the British Columbia Supreme Court in Canada ruled that her actions met the dual criminality standard between Canada and the United States, thereby legitimizing the continuation of the proceedings.
2. Making Requests for Criminal Judicial Assistance and Advancing Cases
Criminal judicial assistance generally serves as the foundation for cross-border criminal jurisdiction and enforcement. As early as 2007, the United Nations Office on Drugs and Crime issued the Model Law on Mutual Assistance in Criminal Matters, providing a legislative framework and reference model for countries developing domestic legislation. China's International Criminal Judicial Assistance Law was formulated with significant reference to this model law.
According to Article 2 of China's International Criminal Judicial Assistance Law, "criminal judicial assistance" refers to "mutual support between the People's Republic of China and foreign countries in criminal investigations, inquiries, prosecutions, trials, and enforcement activities, including serving documents, gathering evidence, arranging witness testimony or assisting investigations, sealing, seizing, or freezing assets involved in cases, confiscating or returning illicit gains and other related property, transferring sentenced persons, and other forms of cooperation." Thus, all of China’s cross-border criminal jurisdiction and enforcement actions must proceed through formal judicial assistance channels.
In practice, the entity responsible for making requests for criminal judicial assistance depends on whether there exists a treaty-level agreement between China and the requested country. Where such treaties exist, competent central authorities—including the Ministry of Justice, the National Supervisory Commission, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of State Security—submit requests within their respective jurisdictions. In the absence of formal treaties, assistance is sought via diplomatic channels.
It should be noted that China and a certain Western power actually signed the Agreement between the Government of the People's Republic of China and the Government of the United States of America on Criminal Judicial Assistance (commonly known as the China-U.S. Mutual Legal Assistance Agreement) back in 2000, and the two countries have engaged in multiple instances of cooperation since then.
Insights from Recent Cross-Border Cryptocurrency Fraud Cases: China’s Practical Approach to Cross-Border Criminal Jurisdiction and Enforcement
According to a cross-border cryptocurrency fraud case released by the Jing'an District People's Procuratorate in Shanghai, in early December 2022, a large overseas fraud syndicate lured victims into stock investment groups, posing as "senior mentors" offering market advice and claiming to teach people how to get rich through stock and cryptocurrency investments—all as part of a fraudulent scheme.
After receiving leads, the Jing'an Branch of the Shanghai Public Security Bureau launched an investigation. Through financial tracing and tracking suspects’ movements, law enforcement determined this was likely a cross-border telecommunications network fraud operation. Further investigation revealed that the criminal group operated under the name "XX Company," managing several affiliated websites or investment platforms branded as "XX International" and "XX City"—ostensibly gambling or investment portals. Under slogans like "expert guidance" and "guaranteed profits," they deceived victims into investing and stealing their funds.
Notably, in handling this case, the investigating agencies did not submit requests for international legal assistance to foreign counterparts through authorized bodies such as the Ministry of Public Security. Instead, they conducted close surveillance domestically and successfully arrested 59 suspects who had returned to China between February and April 2023.
This case reveals that although China has signed mutual legal assistance treaties with numerous countries, their practical utilization remains low—possibly due to inefficiencies, complex procedures, and insufficient familiarity among law enforcement personnel with the relevant regulations.
Final Thoughts
One point must be made clear: Xiao Sa’s team does not view Web3ers as "born criminals," nor do we believe that businesses related to digital assets inherently constitute crimes under Chinese law. In fact, precisely because regulatory documents such as the Notice on Rectifying Virtual Currency "Mining" Activities have taken a relatively negative stance toward blockchain-based digital assets, combined with the prevalence of profit-driven law enforcement in China’s current judicial environment, a widespread societal misunderstanding about Web3 practitioners has emerged. Nevertheless, if Chinese citizens deliberately use digital assets as a pretext to carry out criminal activities targeting Chinese citizens while operating overseas, they will find it difficult to escape the reach of Chinese criminal law—even if their physical presence is abroad.
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