The blogger press: this afternoon by using plug-in contact leveling online games and was accused of illegal business crime cases, due to relatively unfamiliar to network plug-in, as domestic cases also does not see more, online search not to much useful information, only to find below, is the comparison system of the crime or not. Paper. We forward to this, for learning, reference, and thank the author of the paper!

 

Criminal regulation using network plug-in profit behavior

 

Authors: Chen Xiaofang Jiangning District People's court

 

Primers used together -- from online games plug-in profit criminal case

 

Dong, Chen bought named "freezing point legend" plug-in to others through the Internet, using the name "native tribes" studio, hiring staff development in Shanghai royal network limited company manages "hot blooded legend" the game to80Element/Week,300Element/Monthly price help game player using the "freezing point legend" plug-in power leveling upgrade, successively for1More than a "hot blooded legend" game account leveling upgrade, since2007Years3January2007Years12Month7Day, from across the country to accept the game player into the capital near200Million yuan.

Used for Dong, Chen "freezing point legend" plug-in around between the normal game customer end of the communication protocol, the client authentication royal company computer system loss, which interfere with the normal operation of the game Legend of mir. At the same time, because of destruction of the balanced and fair rules of network game, caused many game player dissatisfaction and complaints, seriously affecting the royal company production and operation order.2007Years12Month8DayPublic security organs, on suspicion of the crime of destroying computer information system of Dong, Chen criminal detention,2008Years1Month15DayExecution of arrest,2008Years3Month7DayChange to bail, procuratorate prosecution to the court to the crime of illegal business operation, the court had doubts in the conviction in the process: network game is a new social phenomenon, this phenomenon has not been the norm of criminal law clearly defined, then the behavior can constitute a crime, if can, should be based on what charges identified? These are issues worth exploring.

Summary, online games

(a) the concept of plug-in

In EnglishPlug-inThat is, Chinese deception. The specific meaning in, there is no clear legal provisions. At present, the plug-in definition there is no consensus on the definition, the representative are as follows:

Definition 1: "on" Sifu "," external "special governance notice" will plug-in is defined as: "piracy", "external" illegal means without permission or authorization, technical protection measures undermine the legitimate publishing, others enjoy the copyright of Internet game works, modify the application data, secretly works to set up the server, making the game prepaid card(Card), operations or articulated operational legal publishing, others enjoy the copyright of Internet game works, so as to seek interests, against the interests of others."PW","Plug in"Illegal illegal Internet publishing activities shall be severely punished according to law.

Definition 2: external, is located in the network game main program, directly to the network game main program, and to change the game, limit, increase the function of small procedures, is a kind of to achieve a certain purpose, modify the game system, cheat the cogged program of the server.[1]

Definition 3: plug is able to simulate the keyboard and mouse movement, also can use the network game vulnerabilities automatically modify the data transmission program.[2]

Definition4: plug-in is intentionally making, has a direct or indirect impact on a series of programs on the network game or network game, the network game itself, not the client program.[3]

The above definition from a different point of view -- Definition1Hazards caused by external point of view, the definition of2From the point of view of mechanism of plug-in, definition3From the point of view of form of plug-in, definition4From a technical point of view -- the plug-in definition. In addition to these definitions definition2All neglected one point, that is the external nature -- deceptive. The author thinks, all the plug-in, it can be called a plug-in, it is because the use of this procedure can deceive the net swims the server, the server information system to make the wrong action and make the game character ability is non normal lifting. So the author defines plug-in is under:

External refers to intentional preparation for cheating, server information system to achieve a program to modify the game character value. External applications through various technical means to develop can cheat game server software, external users by using this program can deceive the game server information system to make the game role ability to quickly upgrade.

(two) external characteristics

1External influence, the object is network game. The use of plug-in development, are aimed at network game, hope ability through various technical means to change the game role values, popular to say that can quickly upgrade.

2Effects of plug, the deception server information system. Whether through simulated client send false information or intercept the server sends packets to modify or through the keyboard simulation and other means, the result is the information system to deceive the server, make the wrong action.

3Results are modified, external character value. Plug are popular network game community is its ability to modify the role values, make the game player can fast, convenient upgrade to meet the game player, the emulative heart.

(three) external classification

Extrapolated from different angles can be divided into different types[4]:

1To provide, by the official standards can be divided into official and non official plug-in plug-in. The official plug-in is refers to the developers of the game operators or agents to provide or authorized to provide the game. Non official plug-in, except all the official plug-in plug-in outside.

2Whether the net swims, to break rules as the standard can be divided into benign and malignant plug-in plug-in. Benign external refers to the impact on the game does not exceed the limit game on the game player plug-in. Malignant external, refers to the impact on the game than the game to game player limit plug.

3As to whether or not, independent of the game client and the development of technology as the standard can be divided into attached to the game client plug-in and can be independent of the game client plug-in.

4In order to function as a standard of classification, can be divided into the cheating type plug-in, plug-in and auxiliary operation machine human plug-in.

The first classification is not much significance for the regulation of criminal law, third, four kinds of classification are divided into benign and malignant plug-in plug-in to discuss regulation of criminal law, the author agree with the range of criminal law from the benign and malignant external angle plug.

Benign external work only on the client, and not to the server to send false packet data, without modification, damage to the server, but less harmful, I do not discuss.

Malignant external procedures for the use of various means to deceive the server game numerical changes, so as to achieve the ability to modify the role of numerical. This paper discusses network plug-in refers to malignant external.

Two, the use of online games plug-in profit-making behavior of criminal punishability analysis

(a) the social harmfulness to use online games plug-in profit behavior

1, violated the normal order in the management of network game. The author does not discuss the network game is more advantages than disadvantages for social action[5], single network game itself, it is our country works by copyright law protection, network game developers, operators, the protection of the law based on the enjoyment of the rights, external use destroyed the entertainment, the balance of the game, the game of life cycle can cause serious, seriously affected the normal order in the management of network game.

2, violated the order of market transactions. Game developers of game software, the operators to operate the game software is to sell yourself to the game player or the enjoyment of the rights of intellectual achievement and obtain their legitimate interests, so developers, operators and game player is the main body of market transactions, the transaction, operators provide game software game player, playing the game through the network traffic to pay or buy virtual equipment to make the game operators benefit, use an external power leveling is the use of a cheating way to send false data to the game server so that the game player upgrade in a very short period of time, among game player and operators agreed, it violated the original orderly transaction order.

3The normal work, seriously affect the game operators. There are a lot of in use during the plug-in, there will be a normal game player to the game operators complain. Increase the volume of complaints, more direct game operation business customer service reception, verification, verification, the processing load. At the same time, game operators in order to deal with the external power leveling, may input costs, the establishment of special technical response team, the use of the plug-in is researched and cracking, tracking and processing to hook users, and timely according to the use of external procedures against, upgrade the game server and the client. Therefore, the use of online games plug-in profit, directly affect the game operators in the normal work and management order.

4, causing serious economic loss to the operator. One is to increase the server into. External power leveling occupation game operation business of computer system resources, increase the load is not necessary game server. In the single user case, because plug-in with game and acceleration and other non normal function, so the use of plug-in, game data offline plug in unit time the amount of data sent to the server is much larger than the normal users by the client in a unit of time to send packets, therefore, plug-in runtime occupied system resources, increase the server load. Two is to increase the input of human and technology. In order to deal with every kind of studio plug-in Dailian, increase customer service reception, take technical response, will put a lot of manpower, financial and material resources, increase the cost of the intangible, resulting in the loss of. The three is the direct cause of reduced income. For the general user, the upgrade in two ways in the game, one is to upgrade, second by buying a game operators issued "gold", in the game by using the "gold" to "into the world" upgrade. Because of the plug, the game player at little cost can easily upgrade Dailian studio without having to spend a lot of time or the purchase of "gold" upgrade, which directly reduces the game player purchase Dianka and gold in the game to make the game operators consumption, reduced income. In addition to the game lost confidence in the loss of this part of game player, game player in the game of consumption have disappeared, directly cause economic interests, damaged.

(two) evaluation of criminal law should be the social harmfulness use plug online behavior by profit

Social harm from the use of online games plug-in profit behavior, the behavior to bring huge economic losses to the game operators at the same time, but also against the normal market order, it can not constitute a crime?

Italy scholar Beccaria once pointed out: "what is the true measure of crime, the crime of endangering the society."[6]That is to say the crime is a social harm, but Is it right? All have social harmfulness behavior is a crime? The answer is no.. The social harmfulness of crime is the unity of quality and quantity[7], should not only have a certain quality, that is a violation of national sovereignty, territorial integrity, social system, social order, human rights, democratic rights, property rights regime need to protect the legal interests, also need to reach a certain amount, because our country criminal law article13That article on the concept of crime: "the circumstances are obviously minor and the harm is not great, not deemed a crime". Then use the plug-in profit behavior of social harmfulness is the unity of quality and quantity?

The author thinks, for single use plug-in this behavior, game player is only the use of plug-in to help their rapid upgrade, its social harmfulness is very small, because of its impact on the game developers very little. But the large-scale use of online games plug-in development training business for game developers, operators can achieve a qualitative change from quantitative change to the extent, and the subjective malignant change, when ordinary game player when using the plug-in, which he knows to use their own plug-in consequence is also, at least should know but because of this, individual behavior damages to the right holder is very small or even negligible, so the actor has not reached the aware of their behavior will harm the social consequences of the. While the large-scale use of online games plug-in profit-making behavior in the subjective is knowing that their actions will cause a serious harm to the interests of others consequences, in order to achieve the purpose for their own profit and allowing the rights interests of the loss, in the objective harm consequence, also is caused by the rights of the people of interest loss, has achieved the unity of quality and quantity, should be the regulation of criminal law.

(three) the law of network of developed countries or areas on the use of online games plug-in profit behavior

Criminal law in view of the network game plug-in behavior, and no process according to the consulting other countries see directly to the external legal acts, but the use of external profit behavior, using technical means have on another computer program and obtain benefits or losses are caused to others behavior can constitute a crime in some countries. For example, in Germany can constitute the crime of fraud (computer263 ArticleAIn France), can be a nuisance automatic data processing system (the crime323-2 A) or illegal input, cancel, change data crimes (article323-3 A), in Japan can be a nuisance business crime (234Th of two), can disturb the computer crime in the area of Taiwan of China (No.360A). From the legal provisions in these countries or regions, the normal operation of the use of illegal procedure and disturbing other computers, as long as the damage to the interests of others can constitute a crime[8]Even in France, as long as, interfere with or disrupt the data automatic processing system operation can constitute a crime[9]. And in the kinds of punishment, have imposed or a single penalty. From the point of view, the use of illegal program interfere with another computer running behavior, be regarded as crime are considering this behavior causes economic losses to others or hurt others business, and this protection is equal protection, no object restriction.

Three, the use of online games plug-in profit behavior in the embarrassing situation at present criminal law in China under the framework of China

Since the use of online games plug-in profit-making behavior has the required social harmfulness of crime, then the act in criminal law of China should be determined why crime? From the online game plug-in itself, may be related to the crime of destroying computer system, illegal invasion of computer information system, the operation from the online games plug-in way, may be involved in the crime of illegal business operation. Analysis of the use of online games plug-in profit behavior in Chinese criminal law, the author qualitatively embarrassment from this a few elements of the crime.

1The use of online games plug-in, profit-making behavior does not constitute the crime of destroying computer information system

Article 286th of the criminal law provisions in 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. From the behavioral characteristics of plug-in, production of plug-in software must include changes to the server in the computer information system data, so the production of external behavior, if the circumstances are serious may constitute the crime of destroying computer information system. But the simple use of plug-in and not on the server computer information system in storage, processing or transmission of data and applications to delete, modify, increase. Start external program, the client sends out false information to the server to change the game for numerical purposes, generally speaking is to get more energy, faster upgrades. Objective elements so the use of external profit behavior lacks the crime of destroying computer information system requirements, can not constitute the crime.

2The use of online games plug-in, profit behavior does not constitute illegal invasion of computer information system

2009Years2Month28DayThrough the criminal law amendment (seven) to "criminal law" article 285th was amended, added second paragraph "in violation of state regulations, computer information system outside invasion of the provisions of the preceding paragraph or using other techniques, access to the computer information system in storage, processing or transmission of data, or the implementation of illegal control of the computer information the system, if the circumstances are serious......" And of the third paragraph "provide specialized for invasion, illegal control of computer information systems program, tools, or knowingly committing crimes invasion, illegal control of computer information systems and provider, as its tool, if the circumstances are serious......". After the introduction of the amendment, it is argued that the increase of second provides the legal basis for the use of external profit behavior. Because of technical protection measures of external behavior ruined the game operation business, access to server-side data, information system on the server side of the implementation of the illegal control behavior. In this regard, I beg to differ.

First of all, do not have access to the server information system data using external behavior. Game player use plug-in into the game is indeed the technical protection measures through the game software, using non normal way into the information system of the server, but the game player when entering the game and no access to the server information system data. Acquisition refers to the possession or have specific data, the general performance is to copy the data to a stored for him. But the game player plug-in software after entering the game, though it would also and server information system interaction, game player to send data packets, the server information system will be based on this data to make the appropriate response, but the whole process of game player did not pass the copy or other means of access to data.

Secondly, the use of external behavior did not reach the control server of computer information systems degree. "Modern Chinese Dictionary" definition of control are: hand hold object does not make any activity or out of range, or the control of the volunteer activities. In the process of using the plug-in program, the client will send false data to the server, the server provides convenience to the game player based on this false information, but that the provision of false information can not be called a control. Interactive server and client is in accordance with the rules of the game software makers to run the client information, sending false does not change this rule, information server system is still in accordance with their established rules and game player interaction, the author thinks that it is not control behavior, just deceive, default behavior.

Third, from the criminal law amendment (seven) on the illegal invasion of computer information system for correction of background and the legislative intent of illegal practice, criminal law amendment in seven increased access to data, computer information system illegal control of computer information system, provides for invasion, illegal control of computer information systems program, tool behavior mainly to the use of computer software implementation of the program, "network fishing on a computer network"[10]Criminal regulation and "hacker" the behavior of the software[11], and regulate the use of software to send false data server system behavior and No.

3The use of online games plug-in, profit-making behavior as the crime of illegal business operation is also a problem

This paper introduced the case, that the prosecution of the accused Dongmou, Chen in violation of state regulations, illegal, disturb the market order, if the circumstances are especially serious, should be based on the crime of illegal business operation shall be investigated for criminal responsibility of the accused. The author thinks, if the use of online games plug-in profit identified as acts of illegal business, has expanded to explain too. According to the provisions of the criminal law and amendment, the crime of illegal business operation includes the following: (1) without permission management laws, administrative regulations of the monopoly, monopoly goods or other restrictions on the sale of goods (2Approved by the seller and the buyer) import and export licenses, import and export certificates of origin and other laws, administrative rules and regulations of the business license or document (3) unless approved by the competent departments of the state illegal operation of securities, futures, insurance, or illegally engaging in fund payment and settlement business (4) other serious illegal acts disrupting the market order. Obviously, the use of online games plug-in profit-making behavior does not belong to the first three content, so can not constitute "other serious illegal acts disrupting the market order"? The author thinks, an act to constitute fourth illegal business, shall meet the following conditions:

First, must be in violation of state regulations, the first three items from the list of illegal business crime, this crime violates the provisions of the state on the should be a license to operate, that is engaged in the business activities must obtain the approval of the state, license. Here the state regulations including release formulation of the NPC and its Standing Committee about other licensing laws and decisions, administrative regulations formulated by the State Council, provisions of the administrative measures, decisions and orders. Second, must have the nature of the business, because the illegal management behavior must have disrupted the market order objective harm, if it is irrelevant to business words, nature can not be identified as illegal business crime. Third, must have the property that seriously disrupt the market order. In essence, the illegal business belongs to administrative crime, the crime of illegal business behavior relates to the relevant administrative regulations and shall be in violation of the state, but due to the extent of the crime was recognized as crime. To the extent of the crime must have properties, seriously disrupted the market order, in particular, should be seriously disturbed the order of market transactions, because transactions is the core of market segment.

Conditions, these three contrasts the author thinks, the use of online games plug-in profit behavior does not constitute the crime of illegal business operation. Although this behavior has the nature of operations -- because of the existence of transaction behavior, people buy a plug-in and use external help game player leveling upgrade fee to the game player, also has the property of disrupting the market order, but the behavior is not a first characteristic of illegal operation, namely, in violation of the provisions of the state on the operating permit. The prosecution of the defendant in violation of state regulations include: "computer information network and the Internet security protection and management", "computer information system security protection regulations" and "the right of communication through information network", these Provisions are not the country about the permission of the prescribed camp. From the point of view of nature of use external profits, the profit behavior is achieved by providing training to upgrade service to the game player, has not banned for this service according to the law, is not prohibited by law, enjoy civil rights, the behavior is legitimate, the behavior is harmful to the society because the behavior using illegal software, destruction of the original transaction process between the game player and game operators legitimate, causing economic losses to the game operators, violating operators interests. So the author thinks that, if the use of online games plug-in profit behavior constitutes the crime of illegal business operation, will enable the illegal business crime regression pocket crime ranks, also is not the principle of legality as.

Four, how to solve the problem of network game plug-in behavior

1At present, the scope of criminal law, the use of online games plug-in profit behavior should not be regarded as crime

From the foregoing analysis, the use of online games plug-in profit-making acts constitute a crime in the current criminal law framework below is not. In the trial practice, hanging in the judges head is a basic principle of the existing legal provisions and legal principle, and criminal justice is the most important legal principle of crime and punishment. When a new social phenomenon, if the existing law does not clearly defined, the criminal judge determined not by expanding the interpretation of the crime, and should adopt a crime attitude, adhere to the basic principles of the law. At the same time, we on the surface while "indulgence" criminals, in fact is to maintain the real authority of the law. Only do this, can we truly be people to abide by the law, executing.

2, to recommend legislation will use online games plug-in profit-making behavior into criminal -- increase of business crime

Although the criminal law in our country's current did not use online games plug-in profit-making behavior into the scope of crime, but from the behavior of social harmfulness and protection of game developers, operators of the legitimate interests of view, should be to use online games plug-in - serious crime. From several foreign countries against computer crime provisions of view, using illegal software to computer input data for profit or cause damage to the behavior of others is also a crime. Then the behavior should be determined why crime?

The invasion from the behavior of the law, such as the author before the use of online games plug-in, profit is a violation of the market main body -- game developers, operators of interests, but also violated the normal order of market transactions, the two, the author thinks that the more important is the violation of the order of market transactions, should be in the criminal law of the third chapter -- the destruction socialist market economy order, regulate.

But if the author of the third parts, the use of online games plug-in profit behavior does not constitute the crime of illegal business operation, although it is illegal to obtain benefits in performing the contract process by means of hiding the truth, but the use of external profit behavior and not the contract (game operators and game player) party, which make the interests are not from each side of the contract, so it can not constitute the crime of contract fraud. In the crime of illegal business operation can add a -- of business crime. From the use of online games plug-in profiteering behavior, although there is no violation of the provisions of the state on the license to operate, but in fact, the actions against the game developers, operators of the normal business order. The objective aspect of business crime can express:

To the illegal profit as the goal, through the use of fraud or other means, or other business activities, if the circumstances are serious behavior. The penalty can refer to the crime of illegal business operation: the penalty is less than five years imprisonment or criminal detention, a fine or a single illegal proceeds1More than five times the fine; if the circumstances are especially serious, department for more than five years in prison, impose illegal income1More than five times the amount of the fine or confiscation of property.

Indeed, the author was green, for the use of online games plug-in profit how behavior regulation is only a preliminary idea, put forward personal view is also expected to initiate effect can play.

Note:

[1] Xue Chang: "the PW, plug-in criminal penalty", loadHttp://www.it-law.cn/data/2006/0201/article_3714.htmThe last access date2009Years5Month1Day.

[2] Yang Quan: "manufacturers for government support! Talk about network game Sifu and external load "Http://itcool.ccidnet.com/art/682/20040115/80491_1.htmlThe last access date2009Years5Month1Day.

[3] Shou Bu, Chen Yuehua editor: "study" the legal policy of network game, Shanghai Jiao Tong University press,2005 Years10 Vol.1Version, the60 Page.

[4]Shou Bu, Huang Yifeng, Zhu Ling, Yang Wei: "the definition of features and classification of" plug-ins, contained in the "intellectual property"2005No.8Period.

[5] For network game there are many social network games enrich people argue, in the entertainment at the same time, many parents put forward against network games on young people is very deep, a lot of young people indulging in online games can not extricate themselves, seriously affected the healthy growth of the teenagers.

[6] [Italy]Beccaria: "on crime and punishment", the yellow wind, China encyclopedia press1993Year edition, No.67Page.

[7] Chen Xingliang: "philosophy of criminal law" (revised three Edition), China University of Political Science and Law press2004Years2March edition, the134Page.

[8] German criminal law article263 ArticleARequirements: the intention to make yourself or third people obtain illegal property interests, the computer program to others as incorrect adjustment, the illegal use of data through the use of incorrect or incomplete data, a computer program or other means, to others for illegal, to suffer from the loss of property of others, at5 The freedom penalty or penalty. Taiwan "criminal law" article360Regulation: "no reason to computer programs or other electromagnetic interference of other computer or related equipment, causing damage to the public or others, is less than three years imprisonment, detention or, or a one hundred thousand yuan fine." The article 234Th of the criminal law provides for two of damage to computer crime against business: damage to the electronic computer for others to business use or for the use of electronic records, or to the electronic computer used for other business input in false information or improper instructions, or by other methods to make computer cannot run according to the operation objective or illegal use of objective, interfere with others' business, a fine of less than five years in servitude or one million yuan of the following.

[9] The French penal code article323-2 Stipulates the obstruction of information automatic processing system operation: impede or disrupt the crime data automatic processing system operation, at3 Years of imprisonment and Science30 Million francs fine.

[10] The essence of phishing is anglers use network deception, social engineering or technical means to obtain others sensitive personal identity information and financial information. After the follow-up actions to phishing for fishing has access to this information, use these information to engage in fraud, identity theft, identity information such as buying and selling crime or illegal activities.

[11] See Zhao Bingzhi editor: "apply" criminal law amendment new understanding, China Legal Publishing House2009Years4Month, the140-141Page.