Convicting Study On Illegal Acquisition Of Network Virtual Property

With the advent of the era of information,illegal access to network virtual property in network space can bring huge economic benefits to the perpetrator,has the serious social harmfulness,but occur in the virtual space of crime and crime has certain alienation of the real society,in the judicial practice of illegal access to the network virtual property behavior that the qualitative and quantitative differences.Practice sentence on charges of concentrated in the theft,fraud,job occupation crime and property crime and the crime of illegal for computer information system data,between the computer crime of destroying computer information system crime etc.,large difference between two similar behavior to charges,property crime punishment sentencing standards differ in judgment,apply to different charges in similar cases also exist significant difference on the sentencing,on the whole for property crimes sentencing punishment consequences is heavier,the violation of adapted for the principle,also violate the principle of legally prescribed punishment for a more hardly realize "let every citizen to feelings of justice" in the case.In the identified as property crime sentence for a crime amount or illegally obtained the value of network virtual property decided that there is no uniform standard,will be subject to the victim loss amount,or the market price shall prevail,or sell it to the offender amount shall prevail,or considering the case in general to make a judgment,making it even for the same judgment also exist large differences in the amount of punishment,make the imbalance,the offense and judicial dubbed wanton discretion.Through the existing criminal judgment on illegal acquisition of virtual property in practice,the existing problems are clarified,so as to accurately convict and measure the penalty,maintain the authority of criminal law,and stick to the concept of rule of law.At present,the legal attribute of network virtual property has not been defined in the legal provisions,and it belongs to real right,creditor's right,intellectual property right or new rights have not been determined.The unclear orientation of the network virtual property in the civil code to some extent causes the confusion and disputes in the criminal law regulation.In the theory of criminal law,the act of illegally obtaining network virtual property is either denied to be a crime,or considered to be a crime of property,or a crime of computer,or even a crime of copyright infringement.Clarifying the legal attribute of network virtual property is of decisive significance for the criminal law regulation of illegal acquisition of network virtual property.Therefore,we should insist on the consistency between the judgment of civil law and the evaluation of criminal law.The unanimous evaluation of the behavior object only decides whether or not the criminal law protects it and what kind of crime will protect it,but the judgment of the specific crime number needs the independent evaluation of the criminal law.Namely on decide whether a certain behavior constitutes a crime,not only to behavioral objects belong to the property interests or personal legal interests and direct to property or personal crime regulation,should pay attention to the behavior way,only when the object of infringement behavior conforms to a crime only when the crime constitution of specific provisions of criminal law shall be convicted and punished.Based on the analysis of illegal access to network virtual property behavior,you can check in the Internet age,to appear increasingly different from traditional criminal behavior and behavior object,although the infringement object may be the same,the infringement behavior is similar,but not directly with the traditional simple regulation,still need specific provisions on the specific charges of dogmatics review,only conform to the crime constitution to check the number of specific charges into sin.The first chapter discusses the legal attribute of network virtual property,discusses the lexical concept of network virtual property and how to define it in civil law.The network virtual property referred to in this thesis is the property which exists in the network virtual space,takes the electromagnetic data as the carrier,has the use value and the value.It specifically includes account number virtual property(such as QQ number,E-mail address,etc.)currency virtual property(such as bitcoin,game currency,etc.),item virtual property(such as game equipment),equity virtual property(game privileges,phone number,network traffic).Based on the classification and combing of the existing network virtual property,it is considered that the network virtual property is not the object of property right,but a property interest,is the proof of creditor's right.It has both property attribute and right attribute and should be the property object in the civil law standard.The second chapter focuses on illegal access to the network virtual property research of criminal law,and the network virtual property is not illusory thing but it has real value of the objective existence,in reality there are many cases on the network virtual property,this topic at the beginning of the study focuses on the present practical departments attitude to network virtual property,through the web to find written judgment involving the network virtual property criminal verdict documents,read documents in the logic and the referee as a result,the specific judicial practice department identified by the network virtual property legal attribute why and illegally obtaining the property problem of qualitative and quantitative.In order to lay a foundation for concrete demonstration of the application of crime of illegal acquisition of virtual property,the author sorts out the existing theoretical differences on the legal nature and application of crime of virtual property,finds out the reasons for the differences,and analyzes the background and significance of the differences.Chapter three discusses whether the crime of property infringement can be used to regulate the illegal acquisition of network virtual property from the perspective of the doctrinal structure of the specific crime of property infringement.It is considered that network virtual property is the property in civil law,which should be regarded as the property in criminal law based on the unified principle of legal order.Network virtual property is not stipulated in the general provisions of the criminal law,but the "other property" in article 92 of the criminal law can completely include network virtual property,and is consistent with the previous category of property.This also means that the act of infringing on network virtual property should be regulated by the crime of property infringement in chapter 5 of the criminal law,in which "public and private property" is used to describe the specific category of property,and network virtual property is not excluded.In essence,the illegal acquisition of network virtual property can be a property crime from the level of should.Affirming that network virtual property belongs to the object of criminal law protection does not mean to protect it with property crime.Object property crime in the specific provisions of criminal law is "public or private property",the word property can include other interests,but based on various specific charges on the constitutive requirements of differences,violation of property interests of behavior does not constitute all of the property crime,of course,this also means that even the network virtual property is property interests also not necessarily constitute property crime.The viewpoint that supports the regulation of this kind of behavior with larceny ignores the review of the doctrinal structure of larceny.Theft of dogmatics structure is "build with break the possession,and possession can facts of normative,network virtual property in network virtual space,the holder of the build is standardization,the standardization of breaking is only factual possession,this means that the offender can't with illegal way to break the normative possession,cannot satisfy the theft of dogmatics constitutions,was not stealing.The last two chapters define the illegal acquisition behavior as theft behavior and fraud behavior and investigate whether the specific charges in the criminal code can be applied to the illegal acquisition of network virtual property behavior from the perspective of behavior mode.The existence form of network virtual property is different from that of traditional property,which makes the theory of special provisions and doctrines of criminal law based on traditional property cannot regulate all illegal acquisition of network virtual property by property crime,so it should be considered to regulate and supplement it with other charges.Because the virtual property of network is both property and data,it may be regulated by computer crime.The illegal acquisition of network virtual property in terms of the object and mode of behavior fully conforms to the relevant constitution of computer crime,but faces the confusion of legal interest attribute.Both the crime of illegally obtaining data of computer information system and the crime of destroying computer information system are charges of protecting public legal interest.However,the dual characteristics of data and property of network virtual property mean that it embodies the complex legal benefits,that is,the behavior of stealing network virtual property not only infringes the property legal benefits of others,but also infringes the security of orderly computer information system and data.It is necessary to review the doctrinal structure of specific crimes.In the concrete argumentation to close to theft but dogmatics structure significantly different fraud as an example,the crime of fraud of dogmatics structure while also requires possession of elements,but the key elements of the fraud dogmatics structure is "wrong",the object elements restrict the behavior,only when the fraud can be converted into a specific person fraud can be established.The fraudulent act is implemented in the way of making up facts or concealing the truth,aiming to make the other party fall into the wrong understanding and dispose of property.It is because of the existence of the other party's disposition that a new normative possession is established.The actor can establish the possession of virtual property on the network,which constitutes the crime of fraud.