Is virtual property a property within the meaning of criminal law?
Case details
Between May 2015 and April 2016, Wang purchased online game accounts and passwords operated by a company illegally obtained by others, and later monetized game equipment and other items in those accounts for profit through the Internet. During this period, the total amount of game equipment and other items sold reached RMB 69093. On April 29, 2016, Wang was arrested and brought to justice.
It was discovered that of Wang's source accounts that sold game equipment and other items, only 10 were lawfully owned by him; the other 60,000 accounts were obtained illegally by others who purchased them.
The focus of controversy
There are two main points of contention in this case: one isHow should Wang's act of illegally entering other people's accounts and selling other people's game equipment be characterized; The second is how to determine the amount of illegal proceeds in this case, and if the amount cannot be determined, how to determine whether the defendant's actions were particularly serious. Since this article mainly discusses the legal nature of virtual assets such as game accounts and game passwords, the following will focus on the first point of dispute.
Court decisions
The court of first instance held that defendant Wang violated national regulations and obtained data stored in a computer information system. The circumstances were particularly serious.The act has constituted a crime of illegally obtaining computer information system dataHe was sentenced to four years' imprisonment and a fine of RMB 50,000 yuan. [Beijing Haidian District People's Court (2017) Beijing 0108 Preliminary Criminal Judgment No. 365]
After the verdict was handed down, Wang believed that the court of first instance found that the facts were unclear and that the sentence was too heavy, and filed an appeal. After the trial, the court of second instance found that Wang's grounds for appeal were unfounded, so it rejected the appeal and upheld the original judgment. [Beijing No. 1 Intermediate People's Court (2017) Ruling No. 364 on the end of sentence in Beijing 01]
Legal Evaluation
Although the entire process from the first trial to the second trial did not raise questions about Wang's charges, we believe there is still room for discussion about the characterization of Wang's actions in this case.
In judicial practice, there are two main types of adjudication results in such cases:The first is to determine that the act constituted a crime of theft, and the second was to determine that the act constituted a crime of illegally obtaining computer information system data.The main reason why these different views have arisenThere are different opinions on the criminal legality of virtual property such as game account passwords and game equipment involved in the case。
Is virtual property a property within the meaning of criminal law?
Virtual property refers to information resources that are stored in a network space in the form of data codes and have certain economic valueIt mainly has three forms of expression: item, account, and currency. The game account password in Wang's case is virtual property in the form of an account, while game equipment is virtual property in the form of an item. There are three main views on the criminal law attributes of virtual property:
Property said
According to this view,Virtual property has the same attributes as physical property in real life, so it should be recognized as property.Determination of property under criminal law is generally adoptedManagement possibilities sayIn other words, as long as it has management, value, and exchange functions, it can be recognized as property. Virtual assets are purchased or created by spending money or time, so they have a certain value; they can circulate in the market, that is, they can be exchanged; once users have virtual assets, they can manage and control virtual assets, so they have the attributes of assets under criminal law.
For example, the Beijing No. 1 Intermediate People's Court held this view in Zhang's theft case [Beijing No. 1 Intermediate People's Court (2013) Final Judgment No. 115], arguing that the appellant Zhang, along with Fu XX and Song, hacked into another person's computer system to steal game currency and sell it for profit. Their actions constituted a crime of theft.
Property interest statement
In terms of property interests,Virtual property is a right to an equivalent service provided by a service provider.This view is in line with claims under civil law. From this point of view, whether it is an account password or game equipment, it is a type of service provided by a game company, and legal users have stable ownership of these services. If virtual property is stolen, thenThe wrongful act actually infringes on the operator's possession of the property right to provide servicesUsers can claim recovery from the service provider in accordance with the service agreement.
This view was adopted in Reference Case No. 57, Gu's theft case, which was discussed and approved by the Shanghai Higher People's Court Judicial Committee on May 5, 2017. In this case, the defendant stole not the user's game coins, but the game company's game coins. The court found that the defendant carried out acts such as stealing game coins and selling them for profit for the purpose of illegal possession, infringing on the game company's property rights and interests. Their actions had little impact on the normal operation of online games and computer systems, and constituted a crime of theft.
Non-property statement
According to this view, although virtual property is called property, it is different from traditional types of property stipulated in criminal law, andThe law also does not specify the attributes of virtual property, so virtual property cannot be protected as property in the sense of criminal law. From this point of view, the act of infringing on virtual property on the network is actually the perpetrator's deletion or modification of data in the computer information system, so it should bePunished as a computer crime。
At the beginning of the article, Wang took this view in his case of illegally obtaining computer information system data. Under the view of non-property, there are also differences on how to characterize the act of illegally acquiring virtual property. For example, Professor Ouyang Benqi believes that the perpetrator obtained virtual property through destructive operations such as data deletion, modification, and addition, so it should not be defined as a crime of illegally obtaining computer information system data; it should be determinedCrimes against computer information systems。
Write at the end
As an emerging thing, virtual property has gradually penetrated into every aspect of our lives. Article 127 of China's Civil Code stipulates that where the law stipulates the protection of data or virtual assets on the Internet, it shall be in accordance with its provisions. As can be seen, virtual property has become a subject of civil law protection. However, our country's criminal law has yet to clarify the attributes of virtual property, and in practice, there is a phenomenon of different rulings in the same case as a result. Relevant departments promptly respond to practical concerns, and filling gaps in the criminal law attributes of virtual property is a top priority.
Source: Lawyer Shaw
