The Jurisprudence Of Virtual Property

Based on the late development of the contemporary theory of property and the core issues of Chinese cases regarding the virtual property, this dissertation uses an interdisciplinary method combining the law and economics and legal dogmatics, so as to provide a new argument for the proposition that the virtual property should be categorized as the right of things. Therefore, this dissertation focuses on the following questions:(i) Is the virtual property the real property?(ii) Is the virtual property the legal property?(iii) Should the virtue property be categorized as the right of things or the obligation right?(iv) Is the legislative choice coherent with the Chinese legal system?Chapter 2 answered question(i) and(ii). The importance of virtual property as real property is proved by its economic and social value. Besides, the normative theories such as the labor theory, the utilitarian theory and the personality theory establish the foundation of the recognition of virtual property in real world. Finally, according to the historical changes of scopes of legal Property and the interpretation of conception of Property in Chinese civil law, it is no doubt that the virtual property should be classified into the legal property thanks to its monetary value.Chapter 3 and 4 answer the question(iii). This dissertation contests the Essentialism, which insists that the right type should be judged by the objective characteristic of the virtual property. On the contrary, we explore the Consequentialism, which thinks the Legal Consequences and Real Consequences as the normative criterion. From this perspective, whatever the right of things or the obligation right should be materialized into different remedies and tested in the various scenarios of disputes. As such, the correct right type will be determined under the wealth-maximization criterion.In the end, we find that the right-of-thing-oriented remedy achieve more allocative efficiency than the obligation-right-oriented remedy, in other words, the remedy with characteristic of right of things is better than the remedy with characteristic of obligation right for the virtual property. However, the characteristic of right of things cannot be equated with right of things. The legal cartelization need the comprehensive consideration of the of both the systematic effect and institutional cost raised by the virtual property right. The contemporary theory of property right suggests that the there is the functional consistency lurked behind the formal dualism between the right of things and obligation right. However, it is not to say they are the same, on the contrary, there is widely difference in the intuitional cost: the label cost of right of things is higher, and the information cost, contracting cost, enforcement cost, and dispute cost of obligation right is higher. The empirical study indicates that virtue property right which is categorized as the obligation right has the much higher cost than the right of things. As such, the right of things become the priority for the lawmakers.Chapter 5 answers question(iv). Using the comparative-law interpretation method, systematic interpretation method and literal interpretation method to the conception of Thing in Chinese Property Law, this dissertation argues that Thing is the object of right of things, rather than the tangible thing. So we could abandon the vision of the tangible thing and address the meaning of object of the right of things. Therefore, the virtual property could get rid of the farfetched connection to the tangible thing at last. It is the key standards such as Economic Standard, the Specific Standard and the Transferable Standard that make the virtual property subsumed into the Chinese Property Law. But this is the first step to pass the above tests. Because the virtual property dosenot belong to the existing property types, it is challenged by the Numerus Clausus Principle. Based on the basic consensuses of loosening the Numerus Clausus Principle, this dissertation explore the customary right of the thing to justify the right of virtual property right. The virtual property right, for that matter, is exercised as a custom, believed as a legal right in a broad sense, and public by certain way, so it could become the real right of things through the authoritative court judgments. Also, the right content will be formed by combination of the customary law in virtual property and state law in real world.