Virtual currency included in Inheritance Law

1.

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

In order to protect the legitimate rights and interests of "virtual token" holders, the author intends to discuss such issues through a relevant news report and relevant cases

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

In the author's opinion, this crime is one of the crimes of impairing social management order in Chapter 6 of the criminal law, that is, the legal interest protected by this crime is actually the public order of our society, not the property interests of the digital currency holders, which in fact denies the property value of digital currency, It is only protected as a data or system function in a computer system. The author thinks that there is some irrationality in this way

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

Secondly, Article 127 of the general provisions of the civil law, which came into effect on October 1 last year, stipulates that if the law has provisions on the protection of data and network virtual property, such provisions shall prevail. Although only the protection of the network virtual property has made the principle provisions, but it can not be denied that this shows our country's attitude towards the protection of the network virtual property. Although there is no special law for the protection of data and network virtual property in China, from the perspective of the general provisions of civil law, it is predicted that there will be relevant legislation in the future

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

3. For example, bitcoin
the people's Bank of China issued the notice on preventing bitcoin risks on the afternoon of December 5, in which the people's Bank of China said that bitcoin is not a currency, but a virtual commodity. In addition, financial institutions and Payment institutions are not allowed to carry out business related to bitcoin
in order to avoid over hype of virtual commodities such as bitcoin in the name of "virtual currency" and damage the public interest and the legal tender status of RMB, the notice requires financial institutions and Payment institutions to correctly use the concept of currency in their daily work, pay attention to strengthening the ecation of public currency knowledge, and correctly understand currency, treat virtual commodities and virtual currency, and promote the development of virtual currency The concept of rational investment, reasonable control of investment risk, and maintaining the safety of their own property are included in the content of financial knowledge popularization activities, so as to guide the public to establish a correct monetary concept and investment concept
virtual commodities are willing to fight each other, and it is not legal to say that they are happy with each other
game equipment is different. If you want to buy it, it's worth it.

4. What is digital heritage? What can be written into a will

as early as 2003, UNESCO clearly put forward in the Charter for the preservation of digital heritage that digital heritage is the unique knowledge and expression of human beings, which includes culture, ecation, science, management information and technology, law, medicine and other information existing in digital form, or converted from the existing similar mode into digital form

it is generally believed that digital heritage can be divided into material and spiritual categories. Material digital heritage refers to directly linked to property, such as Alipay balance, bitcoin and other virtual currencies. The spiritual ones are social accounts, personal files, etc., which are virtual properties formed by users who spend a lot of time and energy. They are not only the spiritual home of users' daily life, but also the spiritual comfort of relatives through inheritance< According to Article 127 of the general provisions of the civil law, "if there are laws on the protection of data and network virtual property, such provisions shall prevail."

in this regard, Chen Kai believes that the general provisions of the civil law have made principled provisions for the protection of virtual property“ When the definition and scope of virtual property have not been fully determined, it may be more appropriate to make provisions in principle. "<

after consulting relevant laws and regulations, the reporter found that the property law, inheritance law and relevant instructions only regulate the tangible property, and the inheritance of intangible property that may be involved in digital heritage can not be found<

Liu Junhai, director of the Institute of commercial law of Renmin University of China, pointed out that at present, China only takes a relatively conservative attitude towards this, affirming that data should be protected by law, but not affirming the independent civil rights to data“ China's current inheritance law only provides for the inheritance of physical property, but does not provide for the inheritance of virtual property on the Internet. As a result, it is difficult to realize the inheritance of digital heritage in essence, which needs to be revised in the future. "

e to the lack of clear legal provisions, at present, the treatment of digital heritage is mainly determined by Internet platform operators. This also lays a hidden danger for disputes

some scholars have proposed that e to the multiple attributes of communication and social accounts, such as personal privacy, user property and personality, the discussion of inheritance behind them needs to be more carefully grasped< Chen Kai pointed out to the reporter that at present, the virtual property written into the will as a legacy has some problems, such as difficult to confirm the ownership, difficult to find and difficult to transfer“ Because the virtual property is scattered in the servers of various operators, and some virtual properties, such as QQ space, are relatively private. "

it is understood that at present, the platform mainly has two ways to deal with the user's Digital Heritage: first, the user only has the right to use the account, while the network service provider has the ownership. At this time, the account cannot be inherited, and the network service provider can choose to close, delete or cancel the user's account; The second is that the user has the ownership, and the digital heritage can be inherited. At this time, the inheritance of digital heritage needs to provide a series of proof materials

in most cases, Internet companies stipulate that the ownership and use right of user accounts are separated. For example, Sina Weibo, Tencent QQ and other user service use agreements stipulate that if the user does not actually use the service within a period of time after applying for the service, the operator has the right to choose to recycle the user's nickname, account number or stop the service within the scope permitted by laws and regulations<

Liu Junhai believes that there are two aspects to deal with digital heritage: first, the platform should plan the rules of Digital Heritage Inheritance in detail, and make clear the process of inheritors inheriting digital heritage. When a successor appears, the platform has the obligation to assist the successor to inherit the digital heritage according to law. When dealing with digital heritage, the platform should fulfill the obligations of notice, disclosure, assistance and confidentiality, which are also the basic legal requirements to be followed when dealing with digital heritage. Secondly, in terms of legislation, it is suggested that the legislature should take the issue of digital heritage into consideration when amending relevant laws.

5. No, but don't do anything illegal
the notice clarifies the nature of bitcoin, and holds that bitcoin is not issued by the monetary authority, has no monetary attributes such as legal compensation and compulsion, and is not a real currency. In terms of nature, bitcoin is a specific virtual commodity, which does not have the same legal status as currency and cannot and should not be used as currency in the market. However, bitcoin trading as a commodity trading behavior on the Internet, ordinary people have the freedom to participate at their own risk

the notice requires that at this stage, all financial institutions and Payment institutions shall not price procts or services with bitcoin, buy or sell bitcoin as a central counterparties, underwrite insurance business related to bitcoin or include bitcoin into the scope of insurance liability, and provide other bitcoin related services to customers directly or indirectly, Including: providing bitcoin registration, trading, clearing, settlement and other services for customers; Accept bitcoin or use bitcoin as a payment and settlement tool; Carry out bitcoin and RMB and foreign currency exchange services; Carry out bitcoin storage, custody, mortgage and other services; Issuing financial procts related to bitcoin; Take bitcoin as the investment target of trust, fund, etc

according to the notice, the bitcoin Internet website, as the main trading platform of bitcoin, shall be filed with the telecommunications administration according to the provisions of the Telecommunications Regulations of the people's Republic of China and the measures for the administration of Internet information services. At the same time, in view of bitcoin's high risk of money laundering and being used by criminals, the notice requires relevant institutions to perform the legal anti money laundering obligations such as customer identification and suspicious transaction report in accordance with the anti money laundering law of the people's Republic of China, so as to effectively prevent the money laundering risks related to bitcoin

in order to avoid excessive speculation of virtual commodities such as bitcoin in the name of "virtual currency" and damage the public interest and the legal tender status of RMB, the circular requires financial institutions and Payment institutions to correctly use the concept of currency in their daily work, pay attention to strengthening the ecation of the public's knowledge of currency, and correctly understand the concept of currency The concept of correctly treating virtual commodity and virtual currency, rational investment, reasonable control of investment risk, and maintenance of their own property security should be included in the content of financial knowledge popularization activities, so as to guide the public to establish a correct concept of currency and investment

in the future, the people's Bank of China will continue to pay close attention to the trend and related risks of bitcoin based on its own responsibilities (end)

6. If there is evidence to prove that virtual currency belongs to the common property of husband and wife, it can be divided
virtual currency has been included in the scope of legal property in the general provisions of civil law, so it should be considered as property. However, virtual currency is generally registered on the Internet in the name of an indivial. According to the information on the Internet, it is personal property. Only if it can be proved that it belongs to the joint property of husband and wife, it can be divided< According to the general provisions of the civil law, Article 127 of the law shall apply to the protection of data and network virtual property.