Virtual property in the network games on the criminal law

                                       Wu Junjing

   [Abstract] this paper from the criminal law theory, starting from the situation of network game industry, the value attribute of virtual property, and how to truly protect the interests of game player, how to effectively regulate the services of the wrongful act, how to better the regulation of virtual property trade market, puts forward personal solution. At the same time, from the theory of the blank of China's existing laws, feasibility analysis to solve the problem of network virtual property from the criminal law theory.

 

   [keyword] network game virtual property criminal law legislation

 

   Content abstract:This article embarks from the criminal law theory angle, from network game profession survey obtaining, the analysis hypothesized property value attribute question, how and on achieves the protection to play the family vital interest truly, how the practical standard service provider's illegal act, how questions and so on better adjustment hypothesized property did trading market, propose individual solution.At the same time, from the theory stratification plane in view of our country present law blank, analyzes from the criminal law theory stratification plane solution network game hypothesized property question feasibility

 

  Key word  Network game  Hypothesized property    

Criminal law theory The legislation pondered

 

   One, foreword

   The fictitious property in the network game virtual property transactions have shown, is not a "virtual", because it established the corresponding conversion relations in the realistic society. So, establishing perfect system of criminal law, crack down on illegal and criminal acts with the network game of the inevitable requirement, is both a healthy development of the network game, it is also an inevitable choice of the virtual property transaction situation, but also represent the general trend in the world. Due to the lag of legislation in our country, the author of the online games virtual property into the criminal law theory to explore, have important and far-reaching significance, at the same time, also in order to cause our attention and reflection.

   

   The theory of criminal law two, network game virtual property on

   Network game known as the online games in China's Taiwan region, the network game in China history is not long. Since 2000, with the popularity of computer and the Internet, online games as a new fashion entertainment pop up quickly. According to statistics, in 2001 Chinese network game value is only 310000000 yuan, in 2002 than a year increased to 910000000 yuan, but also to the telecommunications and related peripheral industries more than 10 billion yuan. In 2003, the net swims the market value has close to 2000000000 yuan, equivalent to its annual film industry output value. In 2004, the network game market value exceeding 3600000000 rmb. The authority of the International Data Corporation (IDC) report shows, Chinese network game user number has reached 13800000, more than 63.8% growth in 2002 the same year, accounting for 1/5 of Internet users, that the game industry in China has entered a rapid development stage.[i]

   

   The problem is always accompanied by the development of things and the emergence of. In the online games industry is thriving at the same time, a series of cases of violations of the virtual property comes. How to define the virtual property? What is the value of the virtual property? How to adjust the net swims the market? These problems bring legal theory of intense debate at the same time, they also bring us endless thinking.

   

  (A)Analysis of the legal nature of virtual property

   

   So, whether the virtual property infringement act constitutes a crime? The author thinks that the key lies in whether the property attribute, recognition of virtual property, virtual property and clarify the ownership of. Only under the premise of clear these problems, have further discussion on the meaning of. On the other hand, is all impossible.

   

   1.Analysis of the property attribute of virtual property

    Virtual property of network games generally refers to the existence of network game space property, its scope includes the game account, virtual currency, virtual pet game equipment, etc.. At present, for the virtual property is property nature, whether it should be protected by law, in the domestic theory circle has been debated. There are a lot of people think that the virtual property is only one set of data only, do not have any economic value composition, do not have the nature of property, and therefore should not be protected by law. I do not share this view, for the following reasons:

   

   (1From the point of view) property, virtual property has the nature of property.From the legal perspective, the legal property must also have the following conditions: one is to human understanding and control; two is to bring some material benefit to human (that has economic value); three are independent; four is the legal recognition. If virtual property has three elements, it conforms to the law theory of property, it should be legal recognition and protection. Obviously, although the virtual property is a set of electronic data, but it can be for human understanding and control, because the virtual property with the help of computer, network and so on certain carrier exists, game player to set the account number and password to the virtual property for possession and use. At the same time, the virtual property are independent service providers, virtual property in which game player among the transfer, not controlled by the service provider. In addition, the virtual property can be separate transactions online, can bring tangible material benefits for the game player, so it has economic value.

   

   (2Virtual property with goods) elements.From an economic point of view, is the general equivalent commodities with value and use value. Network game developers programming labor is the objective foundation forms the value of virtual property, virtual property can obtain the game player has certain advantages in network game world, especially with the best equipment, can bring a greater sense of accomplishment and satisfaction for the game player. This is the embodiment of use value. In addition, the virtual property can be traded, that can be purchased with cash, which proves that the virtual property has value in exchange. Thus, as a result of the virtual property the condensation of human labor without difference, which has value and use value, so has the basic attributes of goods.

  

   (3The nature of property) in foreign countries and areas have admitted that the virtual property.Relevant person in the game equipment trading also said, "in the overseas, the virtual world of various assets is increasingly considered to be a new economic entity, more and more sure that they are of practical value. In South Korea, the academic research has launched vigorously developing direction of game equipment sales and influence on the economic industry, academia has been affirmed by the great value of its contribution to the society." Centre College business school early use of "giant", "monarch" and other games to teach business courses. Students also use game equipment sales as the subject of the thesis.In addition, the legislation of our country Hongkong, Taiwan area and judicial practice have recognized the value of virtual property and the protection of criminal law.

   

   2.Analysis of virtual property ownership

   The right to ownership of virtual property of network games, and one of the key problems to be solved in current. The pattern of ownership of the virtual property has the following three ways: (1) enjoyed by the service provider, (2) by the game player to enjoy, (3) shared by the service provider and the game player.

 

   The author thinks, game player and service providers is the formation of a service contract relationship, network games as a service project, game player to pay the corresponding cost to the service provider, won the game the right to use, and has invested considerable time, effort, mental obtained by the virtual property, although this is just a group of the data, but the virtual property is not entirely by the service provider control, such as the game player to buy virtual property or sell etc.. Game player has possession, use, income, the right of disposition of the virtual property, virtual property ownership of the game player. In addition, game player won the virtual property is not controlled by the service provider. For example, game player can be obtained by individual labor, that is, game player Daguai leveling for virtual property; also can buy directly to other game player, or from the virtual property trading market for virtual property. Therefore, the author thinks, the virtual property ownership shall belong to game player.

   

 (two) analysis of criminal law theory of virtual property infringement cases

   

    1 thinking about whether virtual property theft constitutes a crime of criminal law theory

   In recent years, the virtual property infringement cases emerge in an endless stream, such as virtual property theft, robbery of virtual property, virtual property, illegally copied to the virtual property transaction as bait to cheat. Here, the author to virtual property theft case as an example, to analyze whether the virtual property violations constitute a crime problem, mainly for the following reasons: first, there is a link between each virtual property infringement. Many cases have shown that, if a man stealing behavior is not likely in a flagrant way robbery; in the virtual world if attempted robbery, likely to commit fraud. Second, a clear understanding of the nature and ownership of the virtual property, whether virtual property infringement act constitutes a crime all have one thing in common, that is a look at the behavior of human is in accordance with the theft of a crime, two according to the related laws and regulations to qualitative. Third, according to the company and the net swims net jointly issued the Chinese first network game against security report shows, 61% game player often stolen virtual goods and equipment.^[ii]Can say, the safe problem in network game is mainly theft problem, and is the most widespread problems, but also the virtual property cases in one of the most types of representative.

   

    China's "criminal law" the provisions of article 264th,Theft is the illegal possession for the purpose of secret theft, large amount of public or private property or multiple secret stealing behavior of public and private property. The larceny crime object, the crime is: one is the ownership of public or private property. Objective two, crime is behavior person to steal the amount of public or private property is a secret bigger, or for many times the secret steal the behavior of public and private property. Three,The subject of this crime is general subject, which is at least 16 years of age, with criminal responsibility of natural person. The subjective aspect of this crime is directly intentionally, four, and has the purpose of illegal possession of private property.^[iii]The author believes that virtual property is property, theft of virtual property of others is a kind of theft. Because, in reality, the virtual property has become one of the theft of the object. Whether it constitutes a crime, according to the specific amount of virtual property theft and. So how to determine the amount of theft?

   

   For the recognition of the value of virtual property, some scholars suggest that should adopt the following several ways: 1, by the China's Ministry of information industry led, a common participation by the relevant administrative departments, game developers, the game master, mechanism, system identification and evaluation of a set of virtual property. 2, through the calculation of the social necessary labor time computing the value of the virtual property, virtual property must be made by certain game player labor and access, network virtual property in the condensation of human labor, by the game master and operation business cooperation to jointly compute the social necessary labor time to determine the value of virtual property. Calculate the specific value of the virtual property, according to the investment cost of 3 game player, the game player must produce a legally convincing. 4, because of the virtual property most do not directly reflect the real value, specific to the virtual property of a different game value, should be closely related with the nature of the game itself, operating conditions, the cost of operators, so the value of comprehensive factors of virtual property needs to be determined after the case analysis.^[iv]

   

   I agree with the above view. At present, still unable to determine the value of virtual property cases, if the game player to sell it, I think that can be a reference standard will sell amount as conviction. Because, according to "the Supreme People's Court on several issues of concrete application of law in the trial of cases of theft of interpretation" of article fifth, paragraph (seven): stolen goods amount higher than the calculated according to the interpretation of larcenous amount, the burglary amount is calculated according to the amount of disposal of stolen goods.^[v]

   

   2.The theory of criminal law on the network game service provider disguised gambling

   Although the game of our country network is developing rapidly, but the development of the whole industry is not standardized, associated with the virtual property cases emerge in an endless stream. Even some service providers in order to obtain high profits, the virtual property as gambling object, open special zone in the game, let the game player to pay real money, and the service provider does not need to assume any risk to another. For example, a famous game network company in the normal game map, plus a special region, game player can pay extra money, to touch some chance events in the region, namely the game player to use extra yuan to buy a card, and then recharge in the game, the system will randomly produced a monster, game player be killed, is likely to gain experience and items of a value, or not at all. This is a huge amazing grey zone, according to the company's internal staff revealed that, when the special map open the suspected of gambling, the probability is completely controlled by the company secret, just opened three days to receive about 20000000 yuan.^③The author thinks, this is the net swims company to use its technological advantage and China's legal system, a form of gambling. Because this behavior has constitute gambling.

   

   1.The object of gambling crime is a socialist society.Gambling is not only harm the social order, affect the production, work and life, and often nursery of other crimes. Because some game player may obtain by profit driven, or for the virtual world, and even the transfer of virtual property and profit, to increase purchase Dianka bet, so broke, so it is easy to induce theft, fraud, robbery and other crimes. The social harm, should be severely punished.

   

   2.The crime of gambling in the objective million showed as gambling, casino or gambling industry behavior.The so-called gambling, is refers to the organization, to attract people to gamble, I am from tap profit. Such people commonly known as "gambling, gambling" I am not directly involved in gambling. The so-called casino, gambling refers to the place and appliances, for gambling in which others, I profit from the behavior. The casino profits include two ways: one is to open a casino is not directly involved in gambling, to collect the ground, equipment use fee or tap profit; the second is to open a casino directly involved in gambling, such as setting the game machine, slot machine gambling or other employees and customers gambling. With one behavior gambling, gambling or the gambling industry, which is in line with the objective elements of the crime of gambling. Game companies with the network game as a cover, in the game with special areas for game player to touch the probability event. And the profits are amazing, probability is completely controlled by the company secret, just opened three days to receive about 20000000 yuan.

   

  3.Gambling crime subject is a general one, where the statutory age of criminal responsibility and criminal responsibility of average per capita can constitute a crime.According to the provisions of relevant laws and regulations, the company has the capacity for rights and capacity to act, subjective elements so game companies have gambling crime.

   

    4.Gambling crime in the subjective performance is intentional, and for the purpose of profit.For the purpose of profit is not to say that people have to win the money, just to get money, even if not actually win the money or lose money, also do not affect the subjective elements of the behavior of people with gambling crime. In fact, the game company plus intention with special region is very obvious, namely in the game the almost zero cost, crazy game player to earn money, the probability is completely controlled by the company secret, just opened three days to receive 20000000 yuan is an example. Therefore, the author thinks, game company practices not only disturb the normal order of network game, and completely accord with the constitutive elements of the crime of gambling, with serious social harm. The law should intervene and regulate, but also by the criminal law to combat when necessary.

   

    Three, the network game virtual property criminal legislation

   According to the USA International Data Corporation (IDC) "in 2003 China network game statistics report" shows, China has more than 80% Internet users for the youth, is expected to 2007, game player will reach 41800000, close to the total population of Italy.^[vi]In the game of our country network explosive growth at the same time, because of the gaps in legislation, there is such a situation: on the one hand, China's online games industry with annual growth of 50%, on the other hand, due to the virtual property is not protected and cause damage to the interests of game player. For example, between the virtual property theft game player all night, but was unable to register; virtual property farming industry, a year of money laundering millions cannot supervision; service providers to make use of its technological advantages, in the game disguised gambling, but there is a legal vacuum......

 

   The expert points out, virtual property in the network games directly to the crimes in traditional criminal law, and the crime types, the formation of the actual impact. The rapid development of technology, and its possible future development, the lag of criminal law theory and criminal law rules the possibility of greatly increased, at the same time, summed up the experience of legislation mode in the face of technological progress, appeared to be inadequate, unable to use technical distortions to respond.^[vii]Therefore, Chinese net swims the criminal legislation imminent.

   

   The author thinks, can adopt the following several ways to fill the gaps in our current law:

   

  (a) to expand the invasionThe extension property crime of "private property".Crimes of property violation of "private property" mainly refers to the provisions of article ninety-first of the criminal law, article ninety-second and its judicial interpretation in the financial scope. The author thinks, a part of virtual property belongs to the private property of citizens, but there is no recognised and protected by law. The article ninety-second of the criminal law article (four) is an elastic clause, that is "owned shares, stocks, bonds and other property.". The author suggests that, for the "other property" to broaden the interpretation by the form of judicial interpretation, because starting from the legislative purpose, where the law does not prohibit the citizens' private property, can be used as the object of citizen individual ownership.

   

  (Two)Increase in new criminal charges.China's criminal law article 284th, article 285th, respectively specified the illegal invasion of computer information system and the crime of destroying computer information system. The author believes that, in the current criminal law, can add a "crime of invading virtual property, virtual property" here should be understood in a broad sense, namely "virtual property" is a kind of digital, non physical and chemical property of the form, it not only includes the existence of network game space property, such as game account level, the game currency, game the account has all kinds of equipment, including the QQ account, e-mail, web page and a series of information products. Because now the virtual property infringement cases type is far beyond the scope of our forecast, if the increase of criminal charges associated with the virtual property, one can solve the vacuum on the legislation, two can save the cost of making new law, less than three can make up the current criminal law of our country in the.

   

  (three) to formulate the corresponding penalty to the crime of invading virtual property.Our country's penalty system classification in theory mainly life penalty, freedom penalty, property penalty and qualification penalty. For the crime of virtual property violations, no matter how serious, I oppose the application life penalty, because the death penalty is an inhumane punishment. Freedom penalty is China's penal system center, it is a penalty method applicable to all crimes can be, as for the problem of how to apply, we can learn from the practice of Hong Kong and Taiwan area. Taiwan authorities have made judicial interpretation, that network virtual property belongs to the electromagnetic records, and electromagnetic records in fraud and theft are movable property theory, are considered part of a private property. In the network game virtual property theft will be regarded as crime, the maximum 3 years in prison. Police in Hongkong area of our country think, embezzle other account of hacking, according to the "Regulations" provisions of article 161st of criminal offences, for those who trespass game account stolen weapons highest can be sentenced to 5 years in prison. In addition, the application of the penalty of property, the author thinks that, according to the behavior of people commit crime, the specific reference to the provisions of relevant laws and regulations, single or impose property punishment. In our country, because of the qualifications punishment is the additional penalty of our penalty system, mainly refers to the deprivation of political rights and deportation. Therefore, virtual property infringement crime does not exist the problem of qualification penalty.

   

   The author believes that, in the face of more and more virtual property cases encountered legal vacuum, if not for that network game, network game will face more stringent public accountability. In addition, if the network service provider has fault in the protection of virtual property, or any other illegal or criminal acts, must have the aid of criminal law and other related laws to crack down on.

   

    Four, the conclusion

   The author thinks, with the continuous development of network game, if we use the traditional theory of criminal law to look at these new problems, has been unable to adapt to the development trend of network game reality. Especially the network game virtual property trade to the traditional criminal law theory forms a tremendous challenge. So, establishing perfect system of criminal law, crack down on illegal and criminal acts with the network game to represent the general trend, both countries and regions of the world, it is also an inevitable choice of the virtual property transaction situation, at the same time, it is necessary for the healthy development of network game. How to truly protect the interests of game player, how to effectively regulate the services of the wrongful act, how to better regulate the virtual property transaction market, is the criminal legislation of our country to go.