| Theorists and practitioners have already begun to study virtual property,and have achieved some results.This makes us have a preliminary understanding of the basic concepts of virtual property and related criminal law protection,but the criminal law protection of virtual property still has a long way to go.This paper chooses the nature of theft of virtual property as the research topic.Criminal acts of stealing virtual property emerge in endlessly,which not only disturbs the network security order of our country,but also infringes the property rights and interests of the obligee.After the promulgation of the Criminal Law Amendment(7),some local courts have convicted and punished the theft of virtual property according to the crime of theft,some local courts have convicted and punished the crime of illegally obtaining data from computer information systems,and some local courts have convicted and punished the crime of destroying computer information systems.It is because the definition of theft of virtual property is not clear in theory that the disputes between crime and non-crime,this crime and that crime will arise in judicial practice.If we can accurately judge the nature of theft of network virtual property in the context of criminal law,we can not only help the criminal law application of virtual property get rid of the predicament in practice,but also help to promote the prevention of crime of virtual property,and timely respond to therequirements of risk criminal law theory.Firstly,virtual property is not a traditional object of crime.The social relations and legal interests embodied in virtual property are quite difficult to summarize.Therefore,both the definition and category of virtual property and the nature of the act of stealing virtual property have aroused extensive discussion in academic and practical circles.Secondly,there is a lag in the legislative protection of virtual property.Although the new General Principles of Civil Law of our country have already involved in this,they have avoided the basic concept of virtual property;the provisions of the Criminal Law regulating the crime of virtual property are very limited,and the regulatory path in the field of criminal law is still under exploration.Finally,the computer industry is developing rapidly in the Internet era,and the means of stealing virtual property are emerging in endlessly.In the past,the focus of qualitative research on theft of network virtual property has been on the legal attributes of virtual property itself,and the nature of theft of network virtual property is presupposed in advance as a choice between computer crime and property crime.In order to avoid this kind of situation,this paper adjusts the way of thinking and pays attention to various elements in the judgment of the nature of theft of network virtual property,instead of focusing all eyes on the legal attributes of network virtual property.This paper is divided into three chapters: The first chapter is mainly about the basic overview of theft of virtual property on the network,including three sections:The first section fully explains the nature of virtual property in cyberspace,which is extended from the perspective of connotation,extension and scope of virtual property.The connotation of virtual property discussed in this paper is that it can not exist without cyberspace,and it has the possibility to exist at the same time.The sum of dominant and value attributes of electronic data;Section II naturally advances to the distinctive characteristics of theft of virtual property and the typical types of judicial practice,including theft of network virtual property with strong latency and high technical characteristics;Section III collates the current situation of computer crime in China.Because of the endless emergence of cybercrime means in the real society andthe obvious lag of legislation,the judicial practice department can only jump and move in the limited legal provisions,so that the strength of cracking down on cybercrime is limited.Chapter II focuses on the theoretical divergence of the qualitative analysis of theft of virtual property in cyberspace.Firstly,it introduces four theories,including the negative theory of crime,the theory of infringing upon citizens' freedom of communication,the theory of computer crime and the theory of theft,and briefly explains the reasons for their support.Secondly,it criticizes the former three theories from the aspects of social harmfulness,crime constitution and the equivalent of crime,responsibility and punishment.Chapter III focuses on the legitimacy,feasibility and necessity of the crime of theft of virtual property in cyberspace.If we support the theory of theft,we must first prove that network virtual property is indeed equivalent to "property" in the concept of criminal law,and can become the object of property crime;secondly,we should prove that theft of network virtual property accords with the constitutive requirements of theft crime;finally,supporters should propose solutions to the value measurement of network virtual property.After all,virtual property on the Internet is not the same as property in the real world.Whether the amount of virtual property can be determined remains controversial.The third chapter is divided into three parts.The first part fully demonstrates the legality of the conviction and punishment of theft.Firstly,virtual property can be the object of property crime because of its controllability,transferability and transactability.Secondly,because the subject,subjective and objective aspects of the crime of stealing virtual property are consistent.The constitutive elements of the crime of theft,so it is not against the principle of legally prescribed punishment for theft;finally,when the act of stealing virtual property on the network simultaneously violates the crime of theft and computer crime,the establishment of imaginary coincidence,the choice of a heavy penalty,should be convicted and punished by theft.The second part introduces the problems and solutions of the identification of the amount of virtual property on the network.Most of the property crimes in our criminal law take the amount as the importantcriterion of crime or non-crime or misdemeanor.Therefore,it is too rash to define the act of stealing virtual property in cyberspace as theft when it is difficult to accurately measure the price of virtual property.At the same time,it is difficult to implement it in judicial practice.Considering that the size of social interests is closely related to the identity of the right holder,we should consider the value geometry of virtual property for the victim.The third part,through the specific identification of typical cases of theft of network virtual property,draws the conclusion that it is necessary to punish the crime of theft: enumerate several typical cases of theft of network virtual property by different means,analyze and sort them out concretely,and summarize the general law.Through careful combing and careful consideration of the act of stealing virtual property on the network,this paper draws the following conclusions: virtual property on the network belongs to property in the concept of criminal law and can be the object of protection of property crime;the act of stealing virtual property on the network satisfies the constitutive requirements of the crime of stealing,so the act of stealing virtual property on the network is defined as the act of stealing which satisfies the basic principle of legality of crime and punishment.When the theft of virtual property is based on the theory of theft,the sentencing rules should be chosen according to different subjects of rights. |
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