Criminal law network virtual currency

According to the news on February 10, 2018, on September 4, 2017, seven ministries and commissions of the people's Republic of China issued the notice on preventing the financing risk of token issuance, which regulates the issuance of tokens. In the notice, the nature of all kinds of tokens and "virtual currency" is clearly defined: it is not issued by the monetary authority, and it has no monetary attributes such as legal compensation and mandatory, It does not have the same legal status as currency and cannot and should not be used as currency in the market. Nevertheless, it is undeniable that all kinds of "virtual currency" still have a certain property value and are part of the property of the holder. So, how to identify the nature of the theft of such tokens

stealing bitcoin

recently, a news report said that Haidian police in Beijing cracked a case of destroying computer information system. The suspect Zhong used his administrator's authority to modify the company's computer applications and steal 100 bitcoins. Before he could sell the stolen money, Zhong was arrested by the police. At present, Zhong was detained for the crime of destroying computer information system

it can be seen from the report that the police detained the perpetrator for stealing bitcoin on suspicion of damaging the computer information system. The crime of destroying the computer information system stipulated in Article 286 of the criminal law of our country refers to the act of deleting, modifying, adding or interfering with the functions of the computer information system in violation of the provisions of the state, resulting in the abnormal operation of the computer information system and serious consequences, or deleting, modifying or interfering with the data and application programs stored, processed or transmitted in the computer information system Modifying or adding operations with serious consequences, or deliberately making or spreading destructive programs such as computer viruses, which affect the normal operation of the computer system with serious consequences

first of all, in the notice on the prevention of bitcoin risk issued in 2013, it is mentioned that bitcoin is not a real currency because it is not issued by the monetary authority and does not have such monetary attributes as legal compensation and compulsion. Bitcoin has four main characteristics: no centralized issuers, limited amount, no geographical restrictions and anonymity. Because it belongs to a specific virtual commodity in nature The notice also clearly mentioned that bitcoin does not have the same legal status as currency and should not be used as currency in the market. However, as a virtual commodity, the property value behind bitcoin cannot be ignored

finally, from the relevant cases, we can also see the recognition of the property attribute of virtual currency such as bitcoin in China's judicial practice. In April and may 2013, Liu premeditated to set up a bitcoin trading platform, so he recruited Jin and Huang (both sentenced) to jointly set up a "bitcoin" trading platform. During this period, Liu, Huang, Jin, Jin and the defendant he, in addition to other acts of directly stealing customers' funds, also frequently cashed RMB by selling customers' bitcoins, and transferred 120 bitcoins from the website. Finally, the court convicted and punished the defendant for fraud, and the bitcoin transferred by the defendant was also included in the property loss of the victim. Therefore, from the judicial cases, we can also get the recognition of the property attributes of virtual currency such as bitcoin

based on the above reasons, the author thinks that it may be unreasonable to regulate the theft of virtual currency only as the crime of damaging computer information system. We should face up to the hidden property value and consider the application of the crime of infringing property in China's criminal law. Only in this way can we effectively protect the legitimate rights and property of digital currency holders in China

The scope of network virtual property is a new term with the development of Internet, especially online games. The crime of infringing network virtual property is the crime of infringing virtual property, The most common form is to steal network virtual property by secret means

before discussing the nature of theft of network virtual property, we should first make an accurate definition of the scope of "network virtual property" (hereinafter referred to as virtual property). Virtual property is divided into broad virtual property and narrow virtual property. Broad virtual property refers to all the exclusive data that exist in a specific network virtual space, have real transaction value or do not have transaction value and are called by the holder at any time. From the current technology development, including ID account, free and charged e-mail, QQ number, Netease bubble currency (used to buy free SMS), virtual currency, virtual equipment and so on. In a narrow sense, virtual property refers to the virtual property in online games. That is to say, it refers to the data and parameters which are stored on the server through various means, such as "treasure", "pet", "weapon", "level" and "Duan", and which are called, created or added to the game by the player at any time in the online game space environment based on the online game and recorded under the ID account controlled by the online game player

the narrow sense of virtual property only refers to the virtual property in online games, but the network virtual space is not limited to the world of online games. Therefore, we take a broad sense of virtual property in this paper. We believe that virtual property should be "virtual" rather than real property. It must exist in the virtual world and have substantial content in the virtual world, not just a substitute for the real world. Such as Dangdang, Taobao and other online shopping currency, these currencies are only an extension of the real world, it does not have the virtual property, the property does not belong to the virtual property. Another example is that the electronic funds in Internet banking are only records of real property. Even if the database recording real property collapses e to force majeure, the real property will not be damaged, and these electronic funds can not become virtual property. But for QQ and e-mail, although they are similar to the real mailbox and letters, their functions are far from comparable to the real mailbox and letters. For example, they contain network photo album, network hard disk, virtual space and so on. Therefore, we think that QQ and e-mail can become virtual property. According to the different ways of obtaining, virtual property can be divided into three categories:

the first category is the high-level account (ID) of online games or forums, QQ number with better number and e-mail. Network users can improve their level in the network community through their own continuous network community activities, so that they have a greater range of freedom and authority in the network virtual community. This kind of virtual property can be obtained free of charge from the network service providers, such as QQ number. The early five digit and six digit QQ numbers are not obtained by means of compensation, but because such resources meet the needs of network users or represent a certain high level, they are pursued by network users, resulting in the emergence of real trading behavior. Now the better QQ numbers in the nine or ten digits need to be paid from the network service providers

the second category is the virtual currency issued and sold by Internet service providers for online consumption, such as game points. This kind of virtual property generally needs to be purchased from network service providers

the third category is the "property" obtained by Internet users according to established rules when they enjoy certain network services, such as items, equipment, pets in online game settings, or other people's network virtual currency, thus becoming their own virtual property. This kind of virtual property is usually "practiced" by players in the game, and may also be purchased by network service providers or other players

Second, the nature of the act of stealing virtual property in China's judicial practice

1

There are two situations: one is stealing others' virtual property and selling it off; The other is to steal other people's virtual property for their own use. In both cases, the virtual property interacts with the real world. Stealing the victim's virtual property is essentially equivalent to stealing other people's real property. The virtual property is just the manifestation of real economic value. The virtual property has the nature of real world property. In the former case, the purpose of illegal possession is obvious, It should be regarded as theft. There are two prices in the behavior, one is the victim's purchase price, the other is the actor's selling price. How to determine the specific, the following line to explore

in the latter case, the perpetrator steals other people's virtual property and does not sell it off, but keeps it for his own use. In this case, it is difficult to determine the purpose of the perpetrator's illegal possession. In our opinion, we can refer to the interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the specific application of law in handling theft cases (hereinafter referred to as the interpretation of theft) on December 11, 1992. According to the interpretation, those who drive a car illegally, sell or keep it for the purpose of illegal possession shall be regarded as theft. Therefore, we believe that if there is evidence to prove that the perpetrator of stealing others' virtual property is for the purpose of illegal possession, does not return it, and does not want to return it in the future, it should also be considered as theft. However, if there is no sufficient evidence to prove that the perpetrator is for the purpose of illegal possession, the perpetrator is only for entertainment purposes or other malicious purposes, such as revenge to steal other people's virtual property, this kind of behavior is only a use behavior, not for the purpose of illegal possession, generally should not be recognized as theft According to the interpretation on theft, those who drive a car for pleasure and abandon it for many times, thus seriously disturbing the work and proction order and causing serious losses, can be punished as the crime of disturbing social order; Occasionally driving a car for pleasure, if the circumstances are minor, may not be considered a crime and shall be ordered to compensate for the losses. Here, "interpretation of theft" does not identify the above two acts as theft, the reason is the same

2. Steal the virtual property which is not purchased by others with real money but has property value

for example, the five or six digit QQ number applied for free from the network service provider, or the items and equipment that players can "practice" in the game, which can be sold at a clear price on the network. There are two situations: one is to steal others' virtual property and sell it off; The other is to steal other people's virtual property and keep it by oneself. In the former act, although the virtual property is not purchased by the victim with real currency, its virtual property can be sold into real currency. The infringement of the victim's virtual property is actually equal to the infringement of his real property. Moreover, the actor who has sold the virtual property has actually made profits and illegally occupied other people's property, which should be recognized as theft

in the latter behavior, because the virtual property is not purchased by the victim with real currency, although the virtual property can be sold into real currency, the theft of other people's virtual property is for their own use, and has not been sold, so the virtual property has no interaction and meaningful connection with the real world, The nature of the property in the real world is not reflected. It belongs to the behavior in the virtual space, especially the behavior of stealing the virtual property from the network service provider. The actor can not control the virtual property completely, and the network service provider does not lose the control of the virtual property. We think that the criminal law should not intervene, It should not be regarded as theft

Third, how to determine the amount of theft of virtual property. For the case of stealing virtual property, it is the key to determine the amount of theft. For the valuation of virtual property, many people have put forward such methods: to determine by calculating the social necessary labor time; Or by the player proof, according to the player's input cost calculation; Or according to the black market transaction price to determine; Or pricing by game operators; Or replace it with the original barter; Or the establishment of a unified transfer trading platform, to transfer over a period of time to determine the average price

it is very difficult to evaluate the virtual property, and these methods are not feasible. First of all, the value of virtual property does not follow the law of value and cannot be calculated by the social necessary labor time; Secondly, according to the input cost of players, it varies from person to person. The amount of the same virtual property will vary greatly, which violates the principle of justice in the application of criminal law; Third, the black market transaction is not open and the price is changeable, so it is absurd to use the non-public and inaccurate information as the basis; Fourth, it is obviously inappropriate for operators to play the role of Price Bureau, so they have the al identities of athletes and referees; Fifthly, the tradability of virtual property is incomplete, so the valuation of "barter" or "establishing a unified transfer trading platform" is not operable

then, how to determine the amount of stolen virtual property? It can be divided into three situations:

1. For the virtual property with a certain transaction price, because the virtual property has the property of "property", its price is objective and reliable, and the amount of theft should undoubtedly be determined according to the transaction price. If stealing the virtual property secretly in the network environment constitutes the crime of theft, the amount of theft should be determined according to the amount of loss of the virtual property in real life. The corresponding amount of virtual property in real life can be determined by the actual transaction price of the virtual property in real life. The amount of theft is closely related to the property loss of the victim. After all, only the public and private property infringed by criminal acts in real life is the object to be protected by criminal law. For example, in the case of Shanghai Huangpu District People's Procuratorate suing Meng and he for cyber theft, the amount of property represented by the stolen q-coin and game point card can be calculated by using the exchange price agreed in the contract between the victim Maoli company, Tencent company and Netease company, which can accurately reflect the property losses suffered by Maoli company. At present, there is no clear stipulation on how to calculate the amount of theft of q-coin and game point card. The indictment is not calculated according to the selling price of q-coin and game point card recognized on the Internet, but according to the price actually paid by Maoli company when purchasing, which is reasonable

2. For the virtual property that has not been traded, such as the virtual property that players "practice" in the game, because the game process does not proce value, it should be paid according to the amount of profit made by the defendant after theft