Virtual currency into the general principles of civil law
Publish: 2021-04-29 03:53:27
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 casesstealing 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 wayfirst 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 futurefinally, 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
2. Reason: with the rapid development of information technology, real money is far from meeting people's demand for capital flow. If there are enough people to recognize the value of a virtual currency, it may become a substitute unit of material exchange, and the existence of virtual currency will inevitably cause another upsurge in the financial sector
in view of the possible risks of virtual currency, many international organizations and central banks have responded publicly to the supervision of virtual currency system. These responses can be roughly divided into four categories: warning and risk warning, supervision and registration permission, legislative norms, and explicit prohibition
(1) warning and risk warning
some central banks and regulators have issued risk warnings against the special currency and virtual currency system. The federal financial regulatory authority of Germany, the Bank of France, the central banks of the Netherlands and Belgium have issued public warnings against the possible money laundering and terrorist financing caused by the use of bitcoin. In the report released at the end of 2013, the European Banking authority (EBA) warned consumers of many risks of virtual currency, such as exchange loss, e-wallet theft, unprotected payment, price fluctuation and so on. Although Spain did not have a similar risk warning, it issued a timely information announcement related to virtual currency
(2) supervision and registration license
generally speaking, international organizations believe that the supervision of virtual currency should find a balance between risk prevention and innovation promotion. Since 2012, Sweden has required transactions related to virtual currency to be registered with financial regulators. Other countries pay attention to qualification supervision, so as to make it indirectly meet the requirements of prudential supervision. In other countries, the regulation mainly focuses on the business model of virtual currency transaction. The financial prudential regulatory authority of France regards the provision of bitcoin circulation and trading services and the act of earning funds in the process as a payment service and requires the authorization of the government. In addition, some countries focus on the intermediary institutions related to virtual currency. The German federal financial regulatory agency and Danish regulators believe that the provision of intermediary services for virtual currency needs to be authorized< (3) legislative norms
at present, some countries have proposed legislation to regulate virtual currency transactions. Canada plans to legislate to allow the government to supervise the transaction of bitcoin, and to include the transaction of more than US $10000 into the scope of suspicious supervision. The United States hopes to adjust the relevant legal structure should be compared with the development of the special currency. In order to make the Bank Secrecy Act (BSA) applicable in the context of network, the financial crime enforcement network (FinCEN) of the U.S. Department of the Treasury issued the explanatory guidance on the behavior and subject definition of private generation, holding, distribution, trading, acceptance and transmission of virtual currency in 2013. The European central bank stressed that it should strengthen international cooperation under the existing legal framework, and regulate virtual currency from the European and global level under the existing legal framework. More countries believe that bitcoin is not a currency in circulation, has no legal status, and does not meet the definition of financial instruments, such as Finland, Sweden, Malaysia and Indonesia
(4) it is forbidden
in some countries, bitcoin related transactions are prohibited. In December 2013, the people's Bank of China banned financial institutions from trading in bitcoin, which was subsequently extended to payment service providers. The central banks of Thailand and Indonesia share the same attitude. The circulation of anonymous internet currency (including bitcoin) is prohibited by the Russian judicial inspection department as a substitute for currency. The Central Bank of Russia has earlier included the provision of bitcoin services in the scope of suspicious transaction monitoring. The U.S. Securities and Exchange Commission (SEC) has banned the issue of unregistered shares in exchange for bitcoin, and unregistered online securities trading activities in virtual currency.
in view of the possible risks of virtual currency, many international organizations and central banks have responded publicly to the supervision of virtual currency system. These responses can be roughly divided into four categories: warning and risk warning, supervision and registration permission, legislative norms, and explicit prohibition
(1) warning and risk warning
some central banks and regulators have issued risk warnings against the special currency and virtual currency system. The federal financial regulatory authority of Germany, the Bank of France, the central banks of the Netherlands and Belgium have issued public warnings against the possible money laundering and terrorist financing caused by the use of bitcoin. In the report released at the end of 2013, the European Banking authority (EBA) warned consumers of many risks of virtual currency, such as exchange loss, e-wallet theft, unprotected payment, price fluctuation and so on. Although Spain did not have a similar risk warning, it issued a timely information announcement related to virtual currency
(2) supervision and registration license
generally speaking, international organizations believe that the supervision of virtual currency should find a balance between risk prevention and innovation promotion. Since 2012, Sweden has required transactions related to virtual currency to be registered with financial regulators. Other countries pay attention to qualification supervision, so as to make it indirectly meet the requirements of prudential supervision. In other countries, the regulation mainly focuses on the business model of virtual currency transaction. The financial prudential regulatory authority of France regards the provision of bitcoin circulation and trading services and the act of earning funds in the process as a payment service and requires the authorization of the government. In addition, some countries focus on the intermediary institutions related to virtual currency. The German federal financial regulatory agency and Danish regulators believe that the provision of intermediary services for virtual currency needs to be authorized< (3) legislative norms
at present, some countries have proposed legislation to regulate virtual currency transactions. Canada plans to legislate to allow the government to supervise the transaction of bitcoin, and to include the transaction of more than US $10000 into the scope of suspicious supervision. The United States hopes to adjust the relevant legal structure should be compared with the development of the special currency. In order to make the Bank Secrecy Act (BSA) applicable in the context of network, the financial crime enforcement network (FinCEN) of the U.S. Department of the Treasury issued the explanatory guidance on the behavior and subject definition of private generation, holding, distribution, trading, acceptance and transmission of virtual currency in 2013. The European central bank stressed that it should strengthen international cooperation under the existing legal framework, and regulate virtual currency from the European and global level under the existing legal framework. More countries believe that bitcoin is not a currency in circulation, has no legal status, and does not meet the definition of financial instruments, such as Finland, Sweden, Malaysia and Indonesia
(4) it is forbidden
in some countries, bitcoin related transactions are prohibited. In December 2013, the people's Bank of China banned financial institutions from trading in bitcoin, which was subsequently extended to payment service providers. The central banks of Thailand and Indonesia share the same attitude. The circulation of anonymous internet currency (including bitcoin) is prohibited by the Russian judicial inspection department as a substitute for currency. The Central Bank of Russia has earlier included the provision of bitcoin services in the scope of suspicious transaction monitoring. The U.S. Securities and Exchange Commission (SEC) has banned the issue of unregistered shares in exchange for bitcoin, and unregistered online securities trading activities in virtual currency.
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.
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. In China, virtual currency is defined as a special Internet commodity<
notice of the people's Bank of China, Ministry of instry and information technology, China Banking Regulatory Commission, China Securities Regulatory Commission and China Insurance Regulatory Commission on bitcoin risk prevention
notice on bitcoin risk prevention
recently, A kind of so-called "bitcoin" calculated by a specific computer program has attracted wide attention in the world, and some domestic institutions and indivials take the opportunity to hype bitcoin and its related procts. In order to protect the property rights and interests of the public, protect the legal tender status of RMB, prevent the risk of money laundering and maintain financial stability, in accordance with the law of the people's Republic of China on the people's Bank of China, the anti money laundering law of the people's Republic of China, the commercial bank law of the people's Republic of China, the telecommunication regulations of the people's Republic of China and other relevant laws and regulations, We hereby inform you of the following matters:
first, we should have a correct understanding of the attributes of bitcoin. Although bitcoin is called "currency", it is not a real currency because it is not issued by the monetary authority and has no legal compensation and mandatory monetary attributes. In nature, bitcoin should be a specific virtual commodity, which does not have the same legal status as currency, and can not and should not be used as currency in the market< Second, financial institutions and Payment institutions are not allowed to carry out bitcoin related business
at this stage, financial institutions and Payment institutions are not allowed to price bitcoin as a proct or service, buy or sell bitcoin as a central counterparties, underwrite bitcoin related insurance business or include bitcoin into the scope of insurance liability, Shall not directly or indirectly provide customers with other services related to bitcoin, including: providing customers with bitcoin registration, trading, clearing, settlement and other services; 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
Third, strengthen the management of bitcoin Internet sites
in accordance with the telecommunication regulations of the people's Republic of China and the measures for the administration of Internet information services, Internet sites providing bitcoin registration, trading and other services should be filed with the telecommunications regulatory agency
in accordance with the identification and punishment opinions of relevant administrative departments, the telecommunications regulatory authorities shut down illegal bitcoin Internet stations in accordance with the law< Fourth, to guard against the possible money laundering risk caused by bitcoin
all branches of the people's Bank of China should pay close attention to the trend and situation of bitcoin and other similar virtual commodities with the characteristics of anonymity and cross-border circulation convenience, carefully study and judge the money laundering risk, and study and formulate targeted preventive measures. All branches shall bring into anti money laundering supervision the institutions established according to law and providing bitcoin registration, trading and other services within their jurisdiction, and urge them to strengthen anti money laundering monitoring
Internet stations that provide bitcoin registration and transaction services should fulfill their obligations to fight money laundering, identify users' identities, and require users to register with real names, register name, ID number and other information.
all financial institutions, Payment institutions and Internet websites providing bitcoin registration, trading and other services should report to China Anti Money Laundering Monitoring and Analysis Center immediately if they find suspicious transactions related to bitcoin and other virtual commodities, and cooperate with the anti money laundering investigation activities of the people's Bank of China; If any criminal activity clues such as fraud, gambling, money laundering are found using bitcoin, they should report to the public security organ in time< All departments, financial institutions and Payment institutions should correctly use the concept of money in their daily work, and pay attention to strengthening the ecation of the public's knowledge of money, so as to have a correct understanding of money, a correct view of virtual goods and virtual money, rational investment, a reasonable control of investment risks, and a rational understanding of the concept of money The concept of maintaining the safety of their own property should be included in the content of financial knowledge popularization activities to guide the public to establish a correct concept of money and investment
all financial regulatory agencies may formulate relevant implementation rules in accordance with this circular
the Shanghai headquarters of the people's Bank of China, all branches, business management departments and central sub branches of provincial capital cities are requested to forward this circular to all local financial institutions and Payment institutions within their jurisdiction. Please report to the people's Bank of China in time any new situation or problem found ring the implementation of this circular.
notice of the people's Bank of China, Ministry of instry and information technology, China Banking Regulatory Commission, China Securities Regulatory Commission and China Insurance Regulatory Commission on bitcoin risk prevention
notice on bitcoin risk prevention
recently, A kind of so-called "bitcoin" calculated by a specific computer program has attracted wide attention in the world, and some domestic institutions and indivials take the opportunity to hype bitcoin and its related procts. In order to protect the property rights and interests of the public, protect the legal tender status of RMB, prevent the risk of money laundering and maintain financial stability, in accordance with the law of the people's Republic of China on the people's Bank of China, the anti money laundering law of the people's Republic of China, the commercial bank law of the people's Republic of China, the telecommunication regulations of the people's Republic of China and other relevant laws and regulations, We hereby inform you of the following matters:
first, we should have a correct understanding of the attributes of bitcoin. Although bitcoin is called "currency", it is not a real currency because it is not issued by the monetary authority and has no legal compensation and mandatory monetary attributes. In nature, bitcoin should be a specific virtual commodity, which does not have the same legal status as currency, and can not and should not be used as currency in the market< Second, financial institutions and Payment institutions are not allowed to carry out bitcoin related business
at this stage, financial institutions and Payment institutions are not allowed to price bitcoin as a proct or service, buy or sell bitcoin as a central counterparties, underwrite bitcoin related insurance business or include bitcoin into the scope of insurance liability, Shall not directly or indirectly provide customers with other services related to bitcoin, including: providing customers with bitcoin registration, trading, clearing, settlement and other services; 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
Third, strengthen the management of bitcoin Internet sites
in accordance with the telecommunication regulations of the people's Republic of China and the measures for the administration of Internet information services, Internet sites providing bitcoin registration, trading and other services should be filed with the telecommunications regulatory agency
in accordance with the identification and punishment opinions of relevant administrative departments, the telecommunications regulatory authorities shut down illegal bitcoin Internet stations in accordance with the law< Fourth, to guard against the possible money laundering risk caused by bitcoin
all branches of the people's Bank of China should pay close attention to the trend and situation of bitcoin and other similar virtual commodities with the characteristics of anonymity and cross-border circulation convenience, carefully study and judge the money laundering risk, and study and formulate targeted preventive measures. All branches shall bring into anti money laundering supervision the institutions established according to law and providing bitcoin registration, trading and other services within their jurisdiction, and urge them to strengthen anti money laundering monitoring
Internet stations that provide bitcoin registration and transaction services should fulfill their obligations to fight money laundering, identify users' identities, and require users to register with real names, register name, ID number and other information.
all financial institutions, Payment institutions and Internet websites providing bitcoin registration, trading and other services should report to China Anti Money Laundering Monitoring and Analysis Center immediately if they find suspicious transactions related to bitcoin and other virtual commodities, and cooperate with the anti money laundering investigation activities of the people's Bank of China; If any criminal activity clues such as fraud, gambling, money laundering are found using bitcoin, they should report to the public security organ in time< All departments, financial institutions and Payment institutions should correctly use the concept of money in their daily work, and pay attention to strengthening the ecation of the public's knowledge of money, so as to have a correct understanding of money, a correct view of virtual goods and virtual money, rational investment, a reasonable control of investment risks, and a rational understanding of the concept of money The concept of maintaining the safety of their own property should be included in the content of financial knowledge popularization activities to guide the public to establish a correct concept of money and investment
all financial regulatory agencies may formulate relevant implementation rules in accordance with this circular
the Shanghai headquarters of the people's Bank of China, all branches, business management departments and central sub branches of provincial capital cities are requested to forward this circular to all local financial institutions and Payment institutions within their jurisdiction. Please report to the people's Bank of China in time any new situation or problem found ring the implementation of this circular.
5. This is an illegal act
bitcoin is not issued by the monetary authority. It does not have the monetary attributes of legal compensation and compulsion. It 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
at this stage, financial institutions and Payment institutions are not allowed to 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 directly or indirectly provide customers with other services related to bitcoin, including: providing customers with bitcoin registration Trading, clearing, settlement and other services; 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.
bitcoin is not issued by the monetary authority. It does not have the monetary attributes of legal compensation and compulsion. It 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
at this stage, financial institutions and Payment institutions are not allowed to 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 directly or indirectly provide customers with other services related to bitcoin, including: providing customers with bitcoin registration Trading, clearing, settlement and other services; 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.
6. Online game is a kind of interactive entertainment spread and realized through the Internet. It is the proct of the integration and leap forward development of network instry and game instry, information instry and entertainment instry
according to the 2007 China Internet survey report released by China Internet association, the sales revenue of online games in China in 2006 reached 5.96 billion yuan, 61.96% higher than that in 2005. According to the forecast report of the General Administration of press and publication, the sales revenue of China's online game instry will reach 6.7 billion yuan in 2007. It is this instry that breeds unlimited business opportunities and interests. From development to listing and operation, it involves many legal issues. For example: in the process of game development, there may be right disputes between online game developers. In the process of game operation, legal disputes emerge in an endless stream. In the whole process, the subjects involved are quite complex, from online game developers to online game operators, from Internet cafes of game terminal providers to final players, involving the ownership of virtual property, what kind of responsibility game operators should bear for online Games in operation, and many other legal issues
this paper focuses on the complaints and disputes between players and operators involved in the operation of online games by analyzing the complaints of online games< At present, there are no special laws and regulations to adjust the protection of online game players' rights and interests in China. From the reality, the substantive laws that players' rights and interests can be based on mainly include general principles of civil law, contract law, consumer protection law, etc, However, e to the particularity of online games, the current law has obvious deficiencies in protecting the legitimate rights and interests of players
taking our district as an example, there are nine enterprises operating online games in our district. The main business of online games are: journey, street basketball, go kart, heroes of the Three Kingdoms, legend 3G, God cry, Kingdom of light, special forces and other dozens of online games
in 2006, the number of complaints about online games reached 273, accounting for 4.06% of the total number of complaints. From January to October 2007, the number of complaints about online games reached 348. Accounting for 5.11% of the total complaints. By the end of October 2007, the top three complaints were 350 from Shanghai ZhengTu, 96 from youyou and 69 from Guangtong. Although the number of these complaints is only a drop in the bucket compared with the huge number of players, the online game complaints involve a wide range of regions, the difficulty of players to provide evidence, and the corresponding laws and regulations are not perfect, resulting in the current situation that the online game complaints are difficult to deal with, long time limit, and low success rate< According to the statistical analysis of online game complaints, the complaints mainly focus on the following aspects:
(1) account closure
many game players complain that the game account has been blocked by the game operators
for example, Mr. Liu, a player, complained to our commission that he found his account blocked when playing a company's online game and negotiated with the other party, but the other party has not given any reply yet. Mr. Ding complained that: the game company unilaterally blocked my account on the ground of using plug-ins, and required: 1: the game company announced the evidence of my illegal application of plug-ins...
as a company, the foundation for its survival and development is customers. Online game companies are no exception. It is with a huge team of players that online game companies can grow from scratch, from small to large, and graally grow. Some of them have developed into listed companies and become an indispensable force of local economy. Therefore, it's not too much to say that players are the parents of online game companies. So what makes online game companies "kill" these former parents? From the perspective of most game operators, who doesn't want to see this phenomenon, because shutting down players' accounts is tantamount to cutting off future financial resources
in this kind of complaints, most of them are blocked account e to the use of private service or plug-in. Private server is private server; Plug in is mainly a simulation of keyboard and mouse movement program, mainly to modify the data in the client memory, also known as cheating program. For private service, plug-in problem, the attitude of the operator is identified as a violation of the law. The basis is: according to the notice on carrying out the special governance of "private service" and "plug-in" jointly issued by the General Administration of press and publication and other five ministries and commissions, it is clear that the use of "private service" and "plug-in" is illegal and therefore cannot be protected by law. As the private server problem mainly involves the interests of the private server creator and the operator disputes, less involving disputes with the player, so this paper focuses on the player because of the use of plug-in and the operator blocked account, delete the virtual property caused by the complaint dispute
the most basic mentality of players using plug-ins is to upgrade as soon as possible and rece boring upgrade operations. Therefore, it is a common phenomenon that players are blocked by operators for using plug-ins. However, the author questions the practice of operators. There are several bases for operators to block accounts: online game service contract; Rules of online games; Five ministries and commissions "on the development of the" private service "," plug-in "special governance notice" and so on. For the online game service contract, because it is a format contract, whether the specific terms are effective needs to be further identified, which belongs to a basis of undetermined effectiveness. As for the rules of the game, the operator is the creator and maintainer of the online game. It has the right to formulate the corresponding rules of the game, and endows itself with the power to manage the order of the game. Therefore, no matter what the reasons and motives of the players using plug-ins are, this kind of behavior is against the rules of the game, Operators can take necessary measures to shut down players' accounts without violating the law, but the virtual property involved in the account needs to be treated differently. Shutting down the account and deleting the virtual property can only aim at the part that players use plug-in, not the part that players obtain legally. But from the perspective of protecting the legitimate rights and interests of players, the author thinks that for players, game operators have the right to raise objection to the punishment given according to the rules of the game. Once the game operators find that there is an abnormal situation in the player's account, they should give full reminder in time and give the player a reasonable opportunity to explain. Even after the account is closed, it is also obliged to show the relevant evidence to the players. And can't ignore the reasonable requirements of the players. When the players have sufficient evidence to prove that their blocking behavior infringes their legitimate rights and interests, the operators should bear the adverse consequences for their own behavior
(2), "game equipment" disappeared
because the game process often takes a lot of money and time, the value of all kinds of virtual property is also rising, and the virtual property in some popular online games also ranges from tens of yuan to tens of thousands of yuan. As a result, this part of valuable virtual property has also become the focus of some unscrupulous criminals
the theft of virtual property usually leads to disputes between players and thieves, and between players and operators. Due to the virtuality of the network, the universality of the region and anonymity, once the virtual property is stolen, it is very difficult for the stolen players to find the thief by their own strength. Therefore, most players will turn to the operators to provide evidence and ask them to provide the relevant data records on the server. However, e to the lag of China's network law, there is no law stipulating that the operators have this obligation. Therefore, when the player is refused assistance by the operator, it often leads to the player directly complain to the operator or even resort to the court on the ground that the operator does not fulfill its security obligations. According to the author's understanding, at present, the general way to deal with network theft is that the player reports the case to the information network supervision department of the local public security organ and issues a network assistance letter. The player submits the letter to the game operator, and the operator makes corresponding treatment according to the information provided by the player. However, there are no unified legal norms on whether the network property is the legal property of citizens, how to identify its value and how to protect it, which leads to the disunity of whether the public security organs in different places should file a case. As a result, there are complaints of the same nature. In some places, players can successfully open a letter of network assistance to recover the stolen virtual property, while in some places, players can only watch their own accounts go to waste
the main problems involved here are: one is the theft of virtual property caused by the system problems of online game operators. As a game operator, it has the obligation to provide a safe, stable and high-quality system environment for players, and it has the obligation to save the game data and information of players. The author thinks that if the system leaks e to the operator's reasons or faults, resulting in the loss of players' virtual equipment and other property, the loss of players should be compensated. However, if it is e to external factors such as hacker intrusion or virus intrusion that leads to the loss of players' virtual property, it should be analyzed from the following two aspects: one is to see whether the operator's system reaches the level of general technical requirements; The second is to see whether the operator has fulfilled the general ty of care. Because any system, any technology can not be perfect, there may be defects or bugs, if the operator is required to bear strict responsibility is obviously unfair. If the virtual property is stolen e to the player's own reasons, such as improper password keeping or the hacker program such as Trojan horse set by others on the player's client, the operator has no fault, and the player can claim the responsibility from the infringer. Of course, operators have the records of the circulation of goods, so as long as the players show them the exact evidence that can prove the theft of their virtual property (such as network assistance letter, etc.), operators have the obligation to provide evidence to the players and cooperate with the judicial authorities to investigate the infringers< (3) being cheated when buying game equipment
China's legislation does not make it clear that virtual property is citizens' legal property, nor does it stipulate the ownership of virtual property. But in practice, virtual property transactions exist. Because virtual property has a certain price, disputes often occur in the process of transactions
although the law does not stipulate that the transaction of virtual property is legal, according to the principle of "freedom is not prohibited by law" in civil law, the transaction of virtual property between players and between players and operators should be presumed to be legal. The relationship between them is a kind of sales contract, which should be adjusted by the general principles of civil law, the law on the protection of consumers' rights and interests, and the contract law
the transaction between players is a private dispute, mainly involving
according to the 2007 China Internet survey report released by China Internet association, the sales revenue of online games in China in 2006 reached 5.96 billion yuan, 61.96% higher than that in 2005. According to the forecast report of the General Administration of press and publication, the sales revenue of China's online game instry will reach 6.7 billion yuan in 2007. It is this instry that breeds unlimited business opportunities and interests. From development to listing and operation, it involves many legal issues. For example: in the process of game development, there may be right disputes between online game developers. In the process of game operation, legal disputes emerge in an endless stream. In the whole process, the subjects involved are quite complex, from online game developers to online game operators, from Internet cafes of game terminal providers to final players, involving the ownership of virtual property, what kind of responsibility game operators should bear for online Games in operation, and many other legal issues
this paper focuses on the complaints and disputes between players and operators involved in the operation of online games by analyzing the complaints of online games< At present, there are no special laws and regulations to adjust the protection of online game players' rights and interests in China. From the reality, the substantive laws that players' rights and interests can be based on mainly include general principles of civil law, contract law, consumer protection law, etc, However, e to the particularity of online games, the current law has obvious deficiencies in protecting the legitimate rights and interests of players
taking our district as an example, there are nine enterprises operating online games in our district. The main business of online games are: journey, street basketball, go kart, heroes of the Three Kingdoms, legend 3G, God cry, Kingdom of light, special forces and other dozens of online games
in 2006, the number of complaints about online games reached 273, accounting for 4.06% of the total number of complaints. From January to October 2007, the number of complaints about online games reached 348. Accounting for 5.11% of the total complaints. By the end of October 2007, the top three complaints were 350 from Shanghai ZhengTu, 96 from youyou and 69 from Guangtong. Although the number of these complaints is only a drop in the bucket compared with the huge number of players, the online game complaints involve a wide range of regions, the difficulty of players to provide evidence, and the corresponding laws and regulations are not perfect, resulting in the current situation that the online game complaints are difficult to deal with, long time limit, and low success rate< According to the statistical analysis of online game complaints, the complaints mainly focus on the following aspects:
(1) account closure
many game players complain that the game account has been blocked by the game operators
for example, Mr. Liu, a player, complained to our commission that he found his account blocked when playing a company's online game and negotiated with the other party, but the other party has not given any reply yet. Mr. Ding complained that: the game company unilaterally blocked my account on the ground of using plug-ins, and required: 1: the game company announced the evidence of my illegal application of plug-ins...
as a company, the foundation for its survival and development is customers. Online game companies are no exception. It is with a huge team of players that online game companies can grow from scratch, from small to large, and graally grow. Some of them have developed into listed companies and become an indispensable force of local economy. Therefore, it's not too much to say that players are the parents of online game companies. So what makes online game companies "kill" these former parents? From the perspective of most game operators, who doesn't want to see this phenomenon, because shutting down players' accounts is tantamount to cutting off future financial resources
in this kind of complaints, most of them are blocked account e to the use of private service or plug-in. Private server is private server; Plug in is mainly a simulation of keyboard and mouse movement program, mainly to modify the data in the client memory, also known as cheating program. For private service, plug-in problem, the attitude of the operator is identified as a violation of the law. The basis is: according to the notice on carrying out the special governance of "private service" and "plug-in" jointly issued by the General Administration of press and publication and other five ministries and commissions, it is clear that the use of "private service" and "plug-in" is illegal and therefore cannot be protected by law. As the private server problem mainly involves the interests of the private server creator and the operator disputes, less involving disputes with the player, so this paper focuses on the player because of the use of plug-in and the operator blocked account, delete the virtual property caused by the complaint dispute
the most basic mentality of players using plug-ins is to upgrade as soon as possible and rece boring upgrade operations. Therefore, it is a common phenomenon that players are blocked by operators for using plug-ins. However, the author questions the practice of operators. There are several bases for operators to block accounts: online game service contract; Rules of online games; Five ministries and commissions "on the development of the" private service "," plug-in "special governance notice" and so on. For the online game service contract, because it is a format contract, whether the specific terms are effective needs to be further identified, which belongs to a basis of undetermined effectiveness. As for the rules of the game, the operator is the creator and maintainer of the online game. It has the right to formulate the corresponding rules of the game, and endows itself with the power to manage the order of the game. Therefore, no matter what the reasons and motives of the players using plug-ins are, this kind of behavior is against the rules of the game, Operators can take necessary measures to shut down players' accounts without violating the law, but the virtual property involved in the account needs to be treated differently. Shutting down the account and deleting the virtual property can only aim at the part that players use plug-in, not the part that players obtain legally. But from the perspective of protecting the legitimate rights and interests of players, the author thinks that for players, game operators have the right to raise objection to the punishment given according to the rules of the game. Once the game operators find that there is an abnormal situation in the player's account, they should give full reminder in time and give the player a reasonable opportunity to explain. Even after the account is closed, it is also obliged to show the relevant evidence to the players. And can't ignore the reasonable requirements of the players. When the players have sufficient evidence to prove that their blocking behavior infringes their legitimate rights and interests, the operators should bear the adverse consequences for their own behavior
(2), "game equipment" disappeared
because the game process often takes a lot of money and time, the value of all kinds of virtual property is also rising, and the virtual property in some popular online games also ranges from tens of yuan to tens of thousands of yuan. As a result, this part of valuable virtual property has also become the focus of some unscrupulous criminals
the theft of virtual property usually leads to disputes between players and thieves, and between players and operators. Due to the virtuality of the network, the universality of the region and anonymity, once the virtual property is stolen, it is very difficult for the stolen players to find the thief by their own strength. Therefore, most players will turn to the operators to provide evidence and ask them to provide the relevant data records on the server. However, e to the lag of China's network law, there is no law stipulating that the operators have this obligation. Therefore, when the player is refused assistance by the operator, it often leads to the player directly complain to the operator or even resort to the court on the ground that the operator does not fulfill its security obligations. According to the author's understanding, at present, the general way to deal with network theft is that the player reports the case to the information network supervision department of the local public security organ and issues a network assistance letter. The player submits the letter to the game operator, and the operator makes corresponding treatment according to the information provided by the player. However, there are no unified legal norms on whether the network property is the legal property of citizens, how to identify its value and how to protect it, which leads to the disunity of whether the public security organs in different places should file a case. As a result, there are complaints of the same nature. In some places, players can successfully open a letter of network assistance to recover the stolen virtual property, while in some places, players can only watch their own accounts go to waste
the main problems involved here are: one is the theft of virtual property caused by the system problems of online game operators. As a game operator, it has the obligation to provide a safe, stable and high-quality system environment for players, and it has the obligation to save the game data and information of players. The author thinks that if the system leaks e to the operator's reasons or faults, resulting in the loss of players' virtual equipment and other property, the loss of players should be compensated. However, if it is e to external factors such as hacker intrusion or virus intrusion that leads to the loss of players' virtual property, it should be analyzed from the following two aspects: one is to see whether the operator's system reaches the level of general technical requirements; The second is to see whether the operator has fulfilled the general ty of care. Because any system, any technology can not be perfect, there may be defects or bugs, if the operator is required to bear strict responsibility is obviously unfair. If the virtual property is stolen e to the player's own reasons, such as improper password keeping or the hacker program such as Trojan horse set by others on the player's client, the operator has no fault, and the player can claim the responsibility from the infringer. Of course, operators have the records of the circulation of goods, so as long as the players show them the exact evidence that can prove the theft of their virtual property (such as network assistance letter, etc.), operators have the obligation to provide evidence to the players and cooperate with the judicial authorities to investigate the infringers< (3) being cheated when buying game equipment
China's legislation does not make it clear that virtual property is citizens' legal property, nor does it stipulate the ownership of virtual property. But in practice, virtual property transactions exist. Because virtual property has a certain price, disputes often occur in the process of transactions
although the law does not stipulate that the transaction of virtual property is legal, according to the principle of "freedom is not prohibited by law" in civil law, the transaction of virtual property between players and between players and operators should be presumed to be legal. The relationship between them is a kind of sales contract, which should be adjusted by the general principles of civil law, the law on the protection of consumers' rights and interests, and the contract law
the transaction between players is a private dispute, mainly involving
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