Research On The Legal Attribute Of Network Virtual Property

As a new thing in the Internet age,the network virtual property poses a great challenge to the traditional civil law theory.Due to the endless dispute of virtual property in the judicial practice,the academic circles have shown great enthusiasm for the research on the virtual property of the network.On the basis of combing the existing theoretical achievements and practice,this paper focuses on the core of the research on the legal property of network virtual property,the Connotation and Extension of Network Virtual Property,the Attribution of Network Virtual Property and the Typical Dispute over Network Virtual Property in Judicial Practice are discussed.This paper is divided into five parts:The first part is the definition of the concept of network virtual property.First,the production process of network virtual property is analyzed.Network virtual property is a series of binary code combinations that set specific parameters in the network operation business,this binary code is just a form of storage for online virtual property,as well as digital representations of online virtual property.Secondly,through the definition method of the genus and species difference,on the basis of excluding the prior value judgments about the legal attributes of the network virtual property,we define the network virtual property.Thirdly,the properties of the virtual property of the network as well as its virtuality and reality,continuity and duration are analyzed.Finally,taking into account the relative persistence of classification methods and the new and changing network virtual property,the network virtual property is divided into four categories: virtual goods,online accounts,virtual currency and other legally adjusted online virtual property.In the second part,the main theories about the legal attribute of network virtual property are analyzed.First of all,after analyzing the insufficiency of the research path of "relational paradigm",after comparing the advantages and disadvantages of the theory of consequence and essence under the "paradigm of rights",we choose the research path of essence theory.Secondly,after analyzing the insufficiency of atypical doctrine,considering the rationality of defining network virtual property on the basis of binary system of debt and the high theoretical cost of re-structuring pluralistic property system,it is not necessary to set up new type of right.Therefore,the controversy over the legal attributes of online virtual property is mainly reflected in the "opposition" between the theory of object of property rights and the theory of creditor's rights.In the end,it analyzes the shortcomings and merits of the theory of "creditor's rights" and clarifies the misunderstanding of the theory of "object of property rights".The third part demonstrates the rationality of the theory of "object of property rights".First,the historical investigation of the traditional object of real right is made,and it is considered that the "thing must have body" is only a expedient measure of the German civil code rather than a thousand year plan.Secondly,this paper analyzes the trend of the expansion of the object of modern real right and thinks that it is the development trend of the law of modern property.Thirdly,the concept of things incorporeal is decomposed and reconstructed,and the modern meaning of "object" is put forward.It is considered that the object of real right includes objects and rights,while things include physical objects and incorporeal things.Finally,the criterion of "thing" is proposed,that is,the certainty and independence,whereas the network virtual property satisfies the specificity and independence of the thing,which belongs to the bodiless object.The core distinction of material debt is dominance and requesting.The right of network operators to enjoy virtual property is the core attribute of real right,that is,the attribute of dominating property.The fourth part demonstrates the ownership and right content of the virtual property of the network.First of all,it analyzes the rationality of the network virtual property owned by the network operator in principle,and at the same time holds that if there is a special agreement between the parties on the attribution of the network virtual property,the agreement should be based on the agreement.Secondly,it analyzes the theoretical controversy of movable property usufructuary.It is considered that the usufruct rights enjoyed by network users to the virtual property of the network belong to a claim based on the network service contract.At the same time,it is considered that the claim has certain particularity.Finally,it considers the virtual property right as a general concept,which includes both the ownership of the network virtual property and the right of the network users to the network virtual property,which includes both the property rights and the debt property.The fifth part discusses the typical disputes about the network virtual property in judicial practice.First of all,the use of contract protection means that disputes between network users and network operators that do not involve a third party can be solved within the framework of the network service contract.Second,when a dispute occurs between a network user and a third party,a third party violates the possession of the network user on the virtual property of the network,and the network user can directly sue a third party based on the protection claim.When network users find it difficult to find a third party and directly prosecute the network operator,the network operator's security obligation is analyzed.Thirdly,in the network virtual property transaction,it is considered that in the transaction of different types of network virtual property,it should be distinguished whether the transaction belongs to the assignment of the creditor's rights or to the contract,and the criterion of distinction lies in whether the assignor's right to use the online virtual property and the related obligations in the network service agreement are divisible.Finally,it analyzes the realistic rationality of the Prohibition of Assignment,and considers that the source of the rationality can only be to protect the legitimate rights and interests of cyber-consumers,to maintain credit rating system,to avoid the real-name system of over-the-air networks,to maintain network order and social public interests,and should not be the so-called may increase operating costs or damage the profit model.