The online game plug-in criminal regulation

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  • / Author: Aaron Lewis
Written in the beginning: Recently occasionally recorded a little income to cheat, found that some people really, really great encouragement. Legal issues so tidy before have been concerned about, right when the accumulation.


The online game plug-in, although not fresh things, but also let the game operators and ordinary game player a headache for many years. The production, use, sale, plug-in relates to bear civil, administrative and criminal liability, criminal law is the guarantee of smooth implementation of other department law, of course, also need to bear the illegal act heavy punishment.

[what is a plug-in? ]"Plug":Generally refers to the realization of some network game data packets and modify game memory data such as automatic generation of game action, by assisting the game player modificationThe play does not have the function of outer subprogram. Divided into: auxiliary plug-in and malicious cheating type plug-in. (source: Shi Jinping, Tao "on the network game plug-in criminal regulation", contained in the "politics and law" in 2009 tenth period)
[plug-in may constitute what crime? Making, using, selling] network game plug-in (hereinafter referred to as the plug-in) may be mainly consists of the following criminal crime, the crime of destroying computer information system (Law 286), the crime of copyright infringement (criminal law the crime of illegal business operation (217), 225 of the criminal law, the crime of theft (Criminal Law) 264) etc.. In some rare cases, the use of external behavior may also constitute a "criminal law" the provisions of article 285th, such asThe illegal acquisition of computer information system data, the crime of illegal control of computer information system and other crimes, this plugin is just means behavior of tools used in crime, not as we.

[criteria to distinguish between what constitutes a crime of plug-in]
A variety of charges, the seemingly complicated in fact, according to the crime and the consequences can be classified.
Conclusion in advance:
1, damage the system function + cause the system can not be normally operated by "criminal damage;
2, delete or add data applicationBy "Criminal damage;
3, the 1 or 2 as the means, stealing virtual items, virtual currency"By the crime of theft;
4,The 1 or 2 as the means, to obtain the data informationBy "illegalGet data blame of computer information system;
5, sales of external programBy "the crime of illegal business operation;
6, tampering with the game software, production and profit, plug-in and game software substantially similarBy "the crime of infringement of copyright;
Coincidence, both or one felony.

One, constitutes a "crime of destruction" of the situation, the corresponding"Criminal law" article 286thThe preceding two paragraphsTheRegulations.
The first paragraph: violation of the provisions of the state, the functions of the computer information system, modify, delete, increase of interference, resulting in the computer information system can not operate normally, if the consequences are serious, is less than five years imprisonment or criminal detention; if the consequences are especially serious, department for more than five years in prison.
(1) plug-in destructive to the system function (by a public security organ commissioned identification).
"Including the specific way to destroy the"The system function to delete, modify, add, interference, the object is network game software client or server, rather than the game data; the result is that the system function can not be achieved.
For example:The use of external program,Remove the restriction function of numerical input negative deposit shall not be in the game, or to increase control over the game online at the same time the function etc..
(2) the cause "system can not operate normally" is the crime of elements, no such consequences, it does not constitute a crime.
What is "the system can not run normally"? The criminal law and the judicial interpretation are not specified, if more stringent interpretation favorable to the criminal suspect, should be considered to game the system to stop the service, or lead to the uncontrolled system administrator, or lead to serious errors and confusion.
A typical case:Zhang Bo attacks the Sina UT server case:Beijing Haidian District people's Court (2008) at the beginning of the word no. 3461st Haifa square

The second paragraph: in violation of state regulations, the computer information system in storage, processing or transmission of data and applications to delete, modify, add operation, if the consequences are serious, shall be punished in accordance with the provisions of the preceding paragraph.
(1) this is a requirement of crime is the data and the application program to add operation, system function instead of the first paragraph. Network game in storage, processing and transmission of data, the more valuable mainly includes data, user information (user name and password), virtual article data (game coin game props, etc.), virtual property data (such as cards, Q). Network game generally does not involve the application that can run independently from outside the game problem.
(2) an important distinction between second and the first paragraph is not required to cause"The system can not run normally" consequences, that is as long as the judicial interpretation of the provisions of the serious consequences can constitute crime.

How to quantify"Serious consequences"And" serious consequences "?
"Judicial interpretation" that: "serious consequences": (a) caused more than ten computer information system's main hardware or software can not operate normally; (more than five times as "extremely serious")
(two) for more than twenty sets of computer information system in storage, processing or transmission of data to delete, modify, increase operation; (more than five times as "extremely serious")
(three) the illegal income of five thousand yuan or cause economic loss of ten thousand yuan of above; (more than five times as "extremely serious")
(four) cause for more than one hundred sets of computer information system to provide domain name, identity authentication, billing and other basic services or computer information system can not provide services to more than ten thousand users running normal accumulated more than an hour;
 
     
The third paragraph: Intentionally making, dissemination of computer viruses and other destructive procedures, affecting the normal operation of the computer system, if the consequences are serious, shall be punished in accordance with the provisions of the first paragraph.
Despite the devastating plug-in and virus are similar, but the legislation from the technical point of view, this one is obviously especially the provisions of the first paragraph, special punish virus program.
Typical case: Li Jun of destroying computer information system (2007 case) (case of panda burning incense virus) Hubei people's court in Xiantao province (2007) Xian Xing Chu Zi No. 350th


Two, the crime of illegal business operation is a basket!

Selling plug-in can constitute the crime of illegal business operation.
Conviction is the key which object recognition on plug-in: illegal publications, or network of cultural products? Operating in violation of substantive law or procedural provisions? Is the laws and regulations or departmental rules?

1, "illegal publications (or unlawful publication):" in violation of the procedural rules (without the approval of the Department version), or in violation of provisions (Huang Dudu, copyright infringement), the version of the Department of identification in violation of regulations for the illegal Internet publishing, Internet publishing behavior (process), or the plug is illegal publications (illegal), which constitutes the crime of illegal business operation.
                            
The judicial interpretation: "on the trial of criminal cases of illegal publications of concrete application of law interpretation of several issues", eleventh: "in violation of state regulations, publishing, printing, copying, released outside the first interpretation to the provisions of article tenth of other serious harm to social order and disrupting the market order of the illegal publications, if the circumstances are serious, in accordance with the criminal law 225th the provisions of the third paragraph, to be convicted for illegal punishment." twelfth, "serious": business in the amount of 5 to 100000 yuan, or the amount of illegal income in 2 to 30000 yuan of above, electronic publications 500 (box) above; "if the circumstances are especially serious" operating in the amount of 150000 yuan to 300000 yuan, or the amount of illegal income in 50000 yuan to 100000 yuan, management of audio and video products, electronic publications 1500 (box).
Department rules: notice the General Administration of press and publication department version "several problems about identification, ban illegal publications.":"All that is not approved by the state publishing unit of printed issue in the community of newspapers, journals, books, tapes, video tapes, belong to illegal publications."
The State Copyright Bureau "on" Sifu "," external "special governance notice " second section "" Sifu "," external "illegal illegal Internet publishing activities shall be severely punished according to law."
The main case: talk about civilization and other illegal business case (2007) (three 007 legendary plug-in document) Beijing Haidian District people's Court (2006) at the beginning of the word no. 1750th Haifa square, the Beijing first intermediate people's Court (2007) in a sentence final words 1277th judgments.


2, illegal management behavior of Internet cultural products.
The Internet selling plug-in, the plug-in program and network game operation together, constitute the Internet cultural products, the actor has no qualification have not obtained the approval of the Department of culture (Ministry of culture: the network game record reply) shall operate the plug-in profit, it constitutes the crime of illegal business operation.
"Interim Measures for the management of network games"Article SixthIn the network operation of online games, virtual currency and virtual currency trading services, network game business activities of the unit, shall meet the following conditions, and obtain the "network culture operation license".Article eleventhCultural administrative department of the State Council shall examine the contents of imported online games. Import network game should to obtain the approval of the administrative department of culture of the State Council censorship, before operating the internet.Article thirteenthHomebred network game play to the cultural administrative department of the State Council shall fulfill the formalities according to the provisions of the 30 days of the day on the Internet operation.
   Plug-in operator has no business qualification of general network culture (i.e.Network culture operation license), plug-in is clearly not to the Ministry of culture for approval or for the record (i.e.Network game record reply), it can constitute illegal acts in accordance with the law.

Three, the crime of infringement of copyright.
Request plug-ins and game program can be identified as substantial similarity, and to reproduce and distribute behavior.
"The judicial interpretation on several issues of concrete application of law in the trial of criminal cases of illegal publications and second explanation" for the purpose of profit, the implementation of article 217th of the criminal law of the copyright infringement, individual illegal income amount is in fifty thousand yuan of above, the unit amount of illicit income in two hundred thousand yuan of above, belong to "illegal income large amount"; any of the following circumstances, which belongs to the "other serious circumstances": (a) for infringement of copyright has more than two times by administrative responsibility or civil responsibility and criminal law in the implementation of 217th the acts infringing the copyright of one, two years; (two) individual illegal business amount is in two hundred thousand yuan of above, the unit illegal business amount is in one million yuan of above; (three) causing other serious. for the purpose of profit, the implementation of article 217th of the criminal law of the acts of infringement of copyright, individual illegal income amount is in two hundred thousand yuan of above, the unit amount of illicit income in one million yuan of above, belong to "huge amount of illicit income"; has one of the following circumstances, belong to "other especially serious circumstances": (a) individual illegal business amount is in one million yuan of above, units of illegal business in the amount of five million yuan; (two) caused by other special.
On the basis of this crime is the key of expert opinion: after source code comparison,Plug and play program can be identified as substantial similarity;
The main case:Yu Mou violate copyright crime (2012) ("Dragon Valley" plug in case)


Four, the crime of theft
If the use of plug-ins in system or game player is not found, the secret will system has a virtual goods game player control operators all, game player account (the game currency, game equipment (card), the virtual currency, q) under the virtual property on the behavior control, after harvesting, of course at the same time, constitute the crime of theft.
In the case of the identified as acts of theft of less, the main difficulty lies in:
Virtual goods can be applied to the protection of criminal law operation needs to carry on the appraisal price. Value and use value of the judicial organ to the virtual property dispute that almost no should give and property protection. The criminal law, the main problem is the price department not to price evaluation, it is difficult to determine the amount due to theft. This is the practical hurdles.
2013Year March 18thThe Supreme People's court, the Supreme People's Procuratorate issued "on the handling of issues concerning the application of law in criminal cases of theft of interpretation" has initially solved the pricing problem of virtual goods:
The provisions of article fourth Theft amount, determined according to the following methods:

(a) stolen property price proved effective, according to the effective price identification; no effective price proved according to the price, or identification of the burglary amount obviously unreasonable, should be in accordance with the relevant provisions of commissioned valuation institutions valuation;

Modified the original judicial interpretation"Stolen goods price is unknown or the price is hard to determine, according to the State Planning Commission, the Supreme People'sLaw court, the Supreme People's Procuratorate, the Ministry of public security "seized, confiscated items recovered, appraisal management approach", commissioned valuation institutions designated valuation."

No longer will the price appraisal as a definition of larcenous amount.

So, regardless of vandalism and theft of means and purpose is implicated in a crime, or use an external steal property violate the two law, which constitute implicated or imagine combination of crimes, should be compared from a felony under the same treatment,, proceeds of crime, theft to focus on the crime of destruction, therefore, should take the larceny.