The Variety Of Property Concept And The Effects On The Application Of Criminal Law

The rapid development of the internet has greatly facilitated our life meanwhile it makes the form of property virtualized,electronic and data-based.The variety of property forms has caused many difficulties to criminal law.This dissertation is written to solve those problems which the criminal law faced to under the background of the variety of property forms caused by the development of the internet.Chapter one mainly interprets meanings of the concepts of "property" and "possessions" in the criminal law as well as the relationship between them.At the beginning this chapter combs the historical evolution of the concept of "property" and the situation of extraterritorial legislation.Then it discusses the theoretical disputes related to the concepts of "property" and "possessions" in Chinese criminology.Based on those theoretical discussions,we can draw the conclusion that the concept of "property" / "possessions" in the sense of criminal law must satisfy three essential conditions at the same time: First of all,it must exist with the objective form.Secondly,it must have objective economic value that can be measured by money.At last it should have the possibility of possession and transfer by any people.What satisfies these three conditions can be recognized as "possessions" in the sense of criminal law,as well as the term "property".In addition,this chapter also concludes the impacts of the variety of property forms on criminal law such as the indistinct of the concept boundary of "property",the alteration of property criminal behavior models,tangles between different property crimes and the difficulties when recognizing criminal amount and the accomplishment of crime.The second chapter mainly studies the problems related to electronic funds.Electronic funds including bank-electronic cash,the balance of third-party payment,financial products with payment function and decentralized digital currency such as bitcoin should be recognized as "possessions" in the sense of criminal law.Cases encroaching on electronic funds can be classified as "theft","duplication","cashing" and other basic types according to the behavior pattern.The former two constitute theft crime,while the latter is suspected of illegal business and usury transfer.When judging the accomplishment of crimes in these cases,we should insist on the standpoint of "controlled theory",taking the time when the perpetrator actually controlled the electronic funds as the sign of the crime accomplished.In addition,this chapter also discussed the problems concerning how to distinguish different crimes in those cases related to electronic funds.In Chapter three this dissertation takes electronic certificate of entitlement as the research object.Electronic certificates of entitlement include electronic goods certificates,electronic service certificates and electronic bonus points.All kinds of electronic goods certificates should be recognized as "possessions" whether it's free or not while electronic service certificates can only be considered as "property" if they meet the requirements of both paid-acquired and independently exchange function.Whether electronic bonus points could be regarded as "possessions" depends on its function.Behaviors encroaching on electronic certificate of entitlement may be suspected of theft,fraud,forgery and other related crimes.Electronic certificates of entitlement that cannot be exchanged for goods or services separately shouldn't be recognized as "possessions",they only have the function of offering a discount.The next chapter is related to the so-called "Big data" or "data assets"." Big data" a comprehensive set of concepts instead of a single concept.Only those big data manifestations that meet the criteria of "possession" in the criminal law can be called "data assets" or "big data property".To be specific,"big data property" is used to describe those collected-data,anonymized data and data products which can be traded in data markets.The right of "big data property" belongs to big data miners other than its creator.Behaviors encroaching on "big data property" may be suspected of theft,contract fraud and intentional destruction of property crime while those big data manifestations excluded from "possession" can be protected by applying crimes such as computer-related crimes,crime of infringing on civil personal information,crime of infringing trade secrets and crime of copyright infringement.The fifth chapter systematically researches on the controversial issue of "virtual property" in practice.In this chapter we found that the so-called "virtual property" was named of "property",however,it does not have the objective economic value that can be accurately measured by money and currency,nor does it have the possibility of being possessed or transferred by players,so it cannot be identified as "property" in the sense of criminal law.The essence of "virtual property" is a kind of virtual right certificate of internet entertainment service.Those who illegally obtain virtual property from Internet game companies by technical means should be punished as the crime of damaging computer information system while the behavior that "stealing" virtual property from other game players by technical means shall be deemed as illegal acquisition of computer information system data.Behaviors of obtaining virtual property by robbery,fraud and other real means cannot be considered as a crime.In addition,obtaining a large number of virtual properties by internet games plug-in should not be considered as a crime,as long as there is no damage to the computer information system.Using game plug-in to obtain virtual property just for the purpose of entertainment,not for selling,should not be identified as crime.No one can be criminally prosecuted simply for playing a game.The epilogue is the summary of this dissertation.It concluded how the criminal law should respond to the impact of the variety of the concept of property in the background of the Internet.