Network virtual property and electronic currency
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 the people's Republic of China refers to the act of deleting, modifying, adding or interfering with the functions of the computer information system in violation of the state regulations, resulting in the abnormal operation of the computer information system and serious consequences, or the act of deleting, modifying, adding 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
this crime is one of the crimes of impairing social management order in Chapter 6 of the criminal law, that is, the legal interests protected by this crime are actually the public order of our society, not the property interests of the digital currency holders. In fact, it denies the property value of digital currency, but only protects it 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 preventing bitcoin risks issued in 2013, it is mentioned that bitcoin is not a real currency because it is not issued by the monetary authority and has no monetary attributes such 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 network virtual property has been made in principle, it can not be denied that it shows our attitude towards the protection of 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 attributes of virtual currencies such as bitcoin in China's judicial practice.
virtual currency and electronic currency are not the same concept
the definition of e-money is to convert a certain amount of cash or deposit from the issuer and obtain data representing the same amount. By using some electronic methods, the data can be directly transferred to the payment object, so as to pay off the debt. E-money means that consumers pay traditional money to issuers of e-money, and issuers store legal money of equal value with traditional money in electronic devices held by consumers
electronic currency is the electronization of the legal tender, including our common bank cards, Internet banking, electronic cash, etc., as well as the third party payment developed in recent years, such as Alipay, fortune paid and so on. No matter what form these electronic currencies are and through which institutions they circulate, their original source is the legal money issued by the central bank
but virtual currency is the electronization of illegal currency, and its original issuer is not the central bank. For example, Tencent Q currency and other game currency, such virtual currency is mainly limited to circulation in a specific virtual environment. After the emergence of bitcoin, through the blockchain technology to better solve the problem of decentralization, distrust, to achieve global circulation, is sought after in the world. Electronic currency and virtual currency are collectively referred to as digital currency
1. The virtuality of the network virtual property
the network virtual property has the virtuality, that is to say, the virtual property has the inherent dependence on the virtual environment of the network game, and cannot exist without the network game. The dependence of virtual property on online games is manifested in a variety of characters, equipment and game currency. It is the electronic data stored in the game server, which can only be displayed through specific online games. The virtual property in this online game cannot be used in other online games. When the data on the game server disappears, so does the virtual property
2. Technical limitation of network virtual property
network virtual property has technical limitation, which means that the attribute range of characters and equipment in online games are preset by the online game program. Although there is certain volatility in this range, it can't exceed this range. The setting of equipment attribute range is very important, The equipment that makes each attribute of the equipment maximum in its own range is rare. And what level of monsters drop what level of equipment, the probability of dropping equipment, the upgrade range and explosion probability of each kind of equipment are set in advance by the game program. Only high-level monsters drop high-level equipment. The more times the equipment is upgraded, the easier it is to explode (disappear). It is this technology limitation that makes the best equipment scarce
3. The transaction of network virtual property
transaction is a social habit that human beings have had since ancient times, and it is also an inevitable social behavior. The essence of social communication is the communication, exchange and mutual satisfaction between people. As a virtual society, online games also have this characteristic. Although there is a trading system in the game, the virtual society is connected with the real society after all. When the so-called "best" can not be measured by the value in the game or exchanged equivalently, or when the players do not have the ability to exchange equivalently in the game, It's natural to think of using the real society to make up. The network virtual property is traded in the form of commodities in the real society. Now more and more network virtual property trading websites appear, which makes the network virtual property trading present the characteristics of e-commerce and online game trading
4. The value of network virtual property
players invest financial resources, energy and intelligence in the process of the game, continuously improve the level of virtual characters by practicing and doing tasks, and obtain the corresponding equipment and game currency. The difference of financial resources and energy invested by players is directly reflected in the level and quantity of the game characters and the best equipment. Due to the imbalance of the distribution of virtual property and the need of players to redistribute virtual property, the transfer of virtual property leads to the so-called "professional players". These players spontaneously participate in the game in the form of indivials or organizations, by training the game to a high level, or after obtaining those scarce advanced equipment, These high-level roles, equipment and other network virtual property will be sold in reality in order to make profits and become a profession
however, not all virtual property can be sold at a high price in reality. The price of virtual property in reality has a lot to do with the demand. Only those online games that can attract a large number of players, the demand for the best equipment is large, and the virtual property on it can be sold at a high price in reality. This is exactly what game operators are willing to see, because only by allowing the majority of players to participate, can operators be profitable and continue to operate. On the contrary, a game without the participation of players, no matter how excellent equipment you have, no one needs it, so it can not be sold in reality. This kind of online game is also a lifeless online game, and it will close down soon because of poor management. It can be seen that the price of online virtual property in reality is directly related to the operation of online games. Only when the operation of online games is good, can the virtual property be sold at a high price in reality
5. The term of network virtual property
the term of network virtual property plays an important role in determining its legal attribute. Network virtual property is a part of specific online games, and exists on it. Online game is a kind of entertainment service project relying on the network, which is promoted to the market by independent online game service providers. As a kind of service commodity, it must exist in the service period with the changes of online game service providers' operating conditions, operating costs and market demand. This service period also determines the ration of online virtual property, The length of the term depends entirely on the operation of the game service.
As early as November 24, 1998, the California High Court of the United States issued an injunction to prohibit three Intel employees from sending messages criticizing Intel. After being dismissed, the defendant sent a large number of e-mails to tens of thousands of Intel employees five to seven times from December 1996 to September 1998, protesting against Intel's unfair treatment and exploitation of employees. The case caused a heated debate. The defendant claimed that he had the right guaranteed by the Constitution and had access to Intel's e-mail system. His sending of e-mail was a legal act in labor disputes; The plaintiff, on the other hand, thinks that the result of the defendant's action is a large amount of spam. The judge held that the e-mail addresses of Intel employees were not disclosed to the public, and Intel's e-mail system was not a public forum, so the defendant did not have the access right granted by the constitution. Although the content of e-mail belongs to labor dispute, the sending method has constituted the infringement of illegally invading other people's movable property, so the ban has been issued. It can be seen that in the case of Intel v. its resigned employees, the judge protected Intel employees' e-mail and Intel e-mail system as movable property. It can be seen that the network system itself constitutes property, and invasion of the network system constitutes illegal invasion of movable property
another case in the United States is different. Wallace, known as the "spam king" in the United States, is the owner of a promotional company. He presided over the development of e-mail fast sending software, and distributed commercial e-mail to many ISP users, and sometimes embezzled the name of ISP (by changing the return address), causing users to complain. Bigfoot partners Ltd. and earth link network Inc. sued Wallace in federal court in New York and high court in Los Angeles, California, respectively. After the trial, the New York Federal Court ruled that Wallace should remove the e-mail addresses of Bigfoot and its customers from his network. If Wallace or its agent sends spam e-mail to users of Bigfoot or sends such e-mail in the name of Bigfoot, Wallace and its agent will pay a fine of $10000 per day; At the same time, the Los Angeles High Court also made a ruling, forbidding Wallace to send any spam to the users of Dadi connection company. Wallace apologized to the injured users in writing, and promised that if similar behavior occurred again, Wallace would be fined $1 million. The decision of the Los Angeles High Court is based on the law on the prohibition of illegal passage through private territory. In other words, the Los Angeles High Court protects e-mail and e-mail system as private territory
in the above two cases, by interpreting relevant laws and expanding the scope of application of existing laws, judges protect e-mail and e-mail system as traditional "objects"
Japan
the relevant laws of Japan clearly stipulate that the virtual characters and virtual goods in online games have independent property value
South Korea
in South Korea, e to its more developed online games and earlier related problems, cyber crime is increasing in reality. These phenomena make the relevant departments begin to face up to the ownership of "virtual property", and clearly stipulate that the virtual characters and virtual goods in online games have independent property value outside the service providers, and the nature of virtual property is essentially the same as that in bank accounts. It can be seen that South Korea equates virtual property with a kind of "electronic currency", which has the property of object
Taiwan, China
for the virtual property in online games, Taiwan, China has made relevant provisions in the criminal law. Taiwan has added articles 358 and 359 in the form of criminal law amendment, both of which are applicable to the act of stealing account numbers. Article 358 stipulates that anyone who enters another person's account number and password without reason, breaks the protective measures for using a computer, or exploits a loophole in a computer system to invade another person's computer or other related equipment shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or a fine of not more than 100000 yuan. Article 359 provides that anyone who obtains, deletes or alters the electromagnetic records of another person's computer or other related equipment without any reason, thus causing damage to the public or others, shall be sentenced to imprisonment for not more than five years, criminal detention or a fine of not less than 200000 yuan. Subsequently, in order to solve the problem of determining the nature of the cases of stealing virtual property in online games, the Ministry of justice of Taiwan region issued the (90) fajzzi No. 039030 letter on November 23, 2001, holding that "the account, role and treasure information of online games are stored in the game server in the form of electromagnetic records, The owner of the game account has the right to control the electromagnetic records of the characters and treasures, and can dispose or transfer the characters and treasures at will. Although the above characters and treasures are virtual, they have certain property value in the real world. Players can auction or exchange them through the Internet, which is no different from the real world property, Therefore, the characters and treasures of online games seem to have no reason not to be the object of protection of theft or fraud in criminal law. " It is also stipulated in Item 3 of Article 220 of Taiwan's "criminal law" that "electromagnetic record" refers to the record made by electronic, magnetic or other means that cannot be directly recognized by human perception for computer processing According to Taiwan's "criminal law", electromagnetic recording belongs to the category of "writing", which has the attribute of something. Therefore, the virtual "treasure", e-mail, OICQ number and so on in online games are electromagnetic records. This confirms the property value of the virtual characters and virtual objects that the players have in the game, and protects the virtual property as "objects"< Domestic academic research
1. Commodity theory: avoid classifying it, and directly believe that virtual property as a commodity should be protected by law
virtual property can be linked with real money, so to some extent, network virtual property has the general attribute of commodity, which has both value and use value. It fully meets the standard of commodity, and should be equally protected with real life property. For example, in the online game legend, there are many professional players who make a living by playing games, pay their labor, obtain equipment by online training, and then exchange the equipment obtained online for real money as a source of income
2. The theory of real right
those who hold this view believe that virtual property can be regarded as the object of real right. The most representative is Taiwan's "Ministry of justice" 90 FA Jian Ju Zi No. 039030 letter on this issue, which confirms that the virtual property and accounts in online games are "electromagnetic records" existing in the server, and "electromagnetic records" can be regarded as "movable property" and a part of private property in criminal fraud and theft< There are two viewpoints in this theory: one is that it should belong to the intellectual achievements of developers and should be listed as the category of right in intellectual property. That is to say, developers should be treated as right in intellectual property; For the player, it belongs to the right to use the right. The player who purchases or obtains through the clearance does not obtain the exclusive right and ownership of the data, but obtains the right to use the virtual weapon. Another point of view considers virtual property as the result of players' creative intelligence, that players spend a lot of time and energy in the game process, accompanied by intellectual labor input, so virtual property rights can be regarded as intellectual property rights< According to this point of view, the essence of virtual property is a kind of creditor's rights, which should be protected by law. They think that in this kind of service contract relationship, the game itself and various auxiliary functions in the game are part of the services provided by the operators, which is the legal relationship between consumers and service providers. There is no ownership transaction relationship between the game operator and the player, and the game provider does not transfer the ownership of the game and the auxiliary functions in the game, The purpose of players to buy the equipment and items in the game is also to use them in the game, and the control of relevant equipment means that they have the right to enjoy the relevant services provided by the operators. Therefore, the price is the price of the service behavior, not the price of the so-called "thing". Ownership is the premise and result of the transaction of the thing. This is the essence of the transaction of the thing, and the transaction in the service transaction is the behavior. Therefore, for the loss of virtual property in the game, there is no legal basis for the players to claim the ownership of the property and goods in the game environment, and if they claim the operator's breach of contract according to the service contract of both parties, it will be fully supported. For the transaction of virtual property in the game, it is also the transaction of the operator's right to request the service behavior, not the transaction of the ownership of the goods< According to this view, although virtual property may exist in the form of a string of characters or some data stored on the server, rather than an entity, virtual property and real money can be related to each other, and to some extent, they have the general attributes of goods, which are valuable and useful, As intangible property, it should be protected by law. This is also recognized by the court's judgment in Li Hongchen case. The court held that "although virtual equipment is intangible and exists in the special online game environment, it does not affect the appropriate legal evaluation and relief of virtual goods as an intangible property."
As early as November 24, 1998, the California High Court of the United States issued an injunction to prohibit three Intel employees from sending messages criticizing Intel. After being dismissed, the defendant sent a large number of e-mails to tens of thousands of Intel employees five to seven times from December 1996 to September 1998, protesting against Intel's unfair treatment and exploitation of employees. The case caused a heated debate. The defendant claimed that he had the right guaranteed by the Constitution and had access to Intel's e-mail system. His sending of e-mail was a legal act in labor disputes; The plaintiff, on the other hand, thinks that the result of the defendant's action is a large amount of spam. The judge held that the e-mail addresses of Intel employees were not disclosed to the public, and Intel's e-mail system was not a public forum, so the defendant did not have the access right granted by the constitution. Although the content of e-mail belongs to labor dispute, the sending method has constituted the infringement of illegally invading other people's movable property, so the ban has been issued. It can be seen that in the case of Intel v. its resigned employees, the judge protected Intel employees' e-mail and Intel e-mail system as movable property. It can be seen that the network system itself constitutes property, and invasion of the network system constitutes illegal invasion of movable property
another case in the United States is different. Wallace, known as the "spam king" in the United States, is the owner of a promotional company. He presided over the development of e-mail fast sending software, and distributed commercial e-mail to many ISP users, and sometimes embezzled the name of ISP (by changing the return address), causing users to complain. Bigfoot partners Ltd. and earth link network Inc. sued Wallace in federal court in New York and high court in Los Angeles, California, respectively. After the trial, the New York Federal Court ruled that Wallace should remove the e-mail addresses of Bigfoot and its customers from his network. If Wallace or its agent sends spam e-mail to users of Bigfoot or sends such e-mail in the name of Bigfoot, Wallace and its agent will pay a fine of $10000 per day; At the same time, the Los Angeles High Court also made a ruling, forbidding Wallace to send any spam to the users of Dadi connection company. Wallace apologized to the injured users in writing, and promised that if similar behavior occurred again, Wallace would be fined $1 million. The decision of the Los Angeles High Court is based on the law on the prohibition of illegal passage through private territory. In other words, the Los Angeles High Court protects e-mail and e-mail system as private territory
in the above two cases, by interpreting relevant laws and expanding the scope of application of existing laws, judges protect e-mail and e-mail system as traditional "objects"
Japan
the relevant laws of Japan clearly stipulate that the virtual characters and virtual goods in online games have independent property value
South Korea
in South Korea, e to its more developed online games and earlier related problems, cyber crime is increasing in reality. These phenomena make the relevant departments begin to face up to the ownership of "virtual property", and clearly stipulate that the virtual characters and virtual goods in online games have independent property value outside the service providers, and the nature of virtual property is essentially the same as that in bank accounts. It can be seen that South Korea equates virtual property with a kind of "electronic currency", which has the property of object
Taiwan, China
for the virtual property in online games, Taiwan, China has made relevant provisions in the criminal law. Taiwan has added articles 358 and 359 in the form of criminal law amendment, both of which are applicable to the act of stealing account numbers. Article 358 stipulates that anyone who enters another person's account number and password without reason, breaks the protective measures for using a computer, or exploits a loophole in a computer system to invade another person's computer or other related equipment shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or a fine of not more than 100000 yuan. Article 359 provides that anyone who obtains, deletes or alters the electromagnetic records of another person's computer or other related equipment without any reason, thus causing damage to the public or others, shall be sentenced to imprisonment for not more than five years, criminal detention or a fine of not less than 200000 yuan. Subsequently, in order to solve the problem of determining the nature of the cases of stealing virtual property in online games, the Ministry of justice of Taiwan region issued the (90) fajzzi No. 039030 letter on November 23, 2001, holding that "the account, role and treasure information of online games are stored in the game server in the form of electromagnetic records, The owner of the game account has the right to control the electromagnetic records of the characters and treasures, and can dispose or transfer the characters and treasures at will. Although the above characters and treasures are virtual, they have certain property value in the real world. Players can auction or exchange them through the Internet, which is no different from the real world property, Therefore, the characters and treasures of online games seem to have no reason not to be the object of protection of theft or fraud in criminal law. " It is also stipulated in Item 3 of Article 220 of Taiwan's "criminal law" that "electromagnetic record" refers to the record made by electronic, magnetic or other means that cannot be directly recognized by human perception for computer processing According to Taiwan's "criminal law", electromagnetic recording belongs to the category of "writing", which has the attribute of something. Therefore, the virtual "treasure", e-mail, OICQ number and so on in online games are electromagnetic records. This confirms the property value of the virtual characters and virtual objects that the players have in the game, and protects the virtual property as "objects". 1. Commodity theory: avoid classifying it, directly think that virtual property as a commodity should be protected by law
virtual property can be linked with real money, so to some extent, network virtual property has the general attribute of commodity, which has both value and use value. It fully meets the standard of commodity, and should be equally protected with real life property. For example, in the online game legend, there are many professional players who make a living by playing games, pay their labor, obtain equipment by online training, and then exchange the equipment obtained online for real money as a source of income
2. The theory of real right
those who hold this view believe that virtual property can be regarded as the object of real right. The most representative is Taiwan's "Ministry of justice" 90 FA Jian Ju Zi No. 039030 letter on this issue, which confirms that the virtual property and accounts in online games are "electromagnetic records" existing in the server, and "electromagnetic records" can be regarded as "movable property" and a part of private property in criminal fraud and theft< There are two viewpoints in this theory: one is that it should belong to the intellectual achievements of developers and should be listed as the category of right in intellectual property. That is to say, developers should be treated as right in intellectual property; For the player, it belongs to the right to use the right. The player who purchases or obtains through the clearance does not obtain the exclusive right and ownership of the data, but obtains the right to use the virtual weapon. Another point of view considers virtual property as the result of players' creative intelligence, that players spend a lot of time and energy in the game process, accompanied by intellectual labor input, so virtual property rights can be regarded as intellectual property rights< According to this point of view, the essence of virtual property is a kind of creditor's rights, which should be protected by law. They think that in this kind of service contract relationship, the game itself and various auxiliary functions in the game are part of the services provided by the operators, which is the legal relationship between consumers and service providers. There is no ownership transaction relationship between the game operator and the player, and the game provider does not transfer the ownership of the game and the auxiliary functions in the game, The purpose of players to buy the equipment and items in the game is also to use them in the game, and the control of relevant equipment means that they have the right to enjoy the relevant services provided by the operators. Therefore, the price is the price of the service behavior, not the price of the so-called "thing". Ownership is the premise and result of the transaction of the thing. This is the essence of the transaction of the thing, and the transaction in the service transaction is the behavior. Therefore, for the loss of virtual property in the game, there is no legal basis for the players to claim the ownership of the property and goods in the game environment, and if they claim the operator's breach of contract according to the service contract of both parties, it will be fully supported. For the transaction of virtual property in the game, it is also the transaction of the operator's right to request the service behavior, not the transaction of the ownership of the goods< According to this view, although virtual property may exist in the form of a string of characters or some data stored on the server, rather than an entity, virtual property and real money can be related to each other, and to some extent, they have the general attributes of goods, which are valuable and useful, As intangible property, it should be protected by law. This is also recognized by the court's judgment in Li Hongchen case. The court held that "although virtual equipment is intangible and exists in the special online game environment, it does not affect the appropriate legal evaluation and relief of virtual goods as an intangible property."
Virtual property includes two aspects: first, in a broad sense, virtual property refers to the network virtual objects with property value that can be owned and controlled by people, such as e-mail, network accounts, etc“ Virtual property and other property rights that can be owned and controlled by people and have certain value can be regarded as virtual property in a broad sense.
Second, in a narrow sense, virtual property generally refers to the property existing in online games, including the level of game account, game currency, game characters, skills, etc
although the criminal code does not explicitly include virtual property, there are many cases of infringement of citizens' virtual network property in practice. The final results of these cases are different, which reflects the different positioning and cognition of the network virtual property in the field of criminal law. In the online theft case of Shanghai Huangpu District People's Procuratorate v. Meng Dong and he Likang, published in the bulletin of the Supreme People's court, it is clear that if the virtual behavior carried out by the actor through the network causes harm to the object protected by the criminal law in real life and constitutes a crime, he should be punished; Some people think that it constitutes a crime of infringing the freedom of communication. The people's Court of Nanshan District, Shenzhen City, Guangdong Province (2006) Shen Nan FA Xing Chu Zi No. 56 ruled that Zeng Zhifeng and other people's behavior of secretly stealing other people's QQ numbers to sell profits constitutes a crime of infringing the freedom of communication; Others think that the equipment, gold coins and other items in online games are virtual property, and their legal attribute is computer information system data, which does not belong to the property protected by China's criminal law; There are also views that should be classified, for network identity authentication information theft should be identified as illegal access to computer information system data crime, for theft of virtual currency and virtual objects should be identified as theft
at the same time, it is worth mentioning that although there are differences in the criminal trial, the infringement of citizens' online virtual property, to a certain extent, violates the relevant provisions of the criminal law, and can certainly be investigated for criminal responsibility.