Legislation on virtual assets of electronic currency
Publish: 2021-03-27 08:23:50
1.
virtual currency and electronic currency are not the same concept
the definition of e-money is to convert a certain amount of cash or deposit from the issuer and obtain data representing the same amount. By using some electronic methods, the data can be directly transferred to the payment object, so as to pay off the debt. E-money means that consumers pay traditional money to issuers of e-money, and issuers store legal money of equal value with traditional money in electronic devices held by consumers
electronic currency is the electronization of the legal tender, including our common bank cards, Internet banking, electronic cash, etc., as well as the third party payment developed in recent years, such as Alipay, fortune paid and so on. No matter what form these electronic currencies are and through which institutions they circulate, their original source is the legal money issued by the central bank
but virtual currency is the electronization of illegal currency, and its original issuer is not the central bank. For example, Tencent Q currency and other game currency, such virtual currency is mainly limited to circulation in a specific virtual environment. After the emergence of bitcoin, through the blockchain technology to better solve the problem of decentralization, distrust, to achieve global circulation, is sought after in the world. Electronic currency and virtual currency are collectively referred to as digital currency
2. With the development of the Internet, while providing a large number of free services to the majority of Internet users, according to the company's profit needs and the diversified needs of users, various websites have launched charging services. This also promoted the emergence of virtual currency
in order to provide better services, many portal websites and online game operators have been providing virtual currency for use for a long time. According to incomplete statistics, there are no less than 10 kinds of network virtual currency (referred to as network currency) currently in circulation, such as Q currency, network currency, cool currency, Warcraft currency, Paradise currency, Shanda (game area) coupon, etc. Take Q coin as an example, there are more than 200 million users. Instry insiders estimate that the domestic Internet has a virtual money market scale of several billion yuan per year, and is growing at a rate of 15% - 20%
in a market economy, demand stimulates innovation, which in turn stimulates demand. The increasing popularity of virtual currency is completed in the needs of users and the innovation of enterprises. At present, there are many kinds of virtual currency in China's network market, among which Tencent, relying on its huge QQ users, has timely launched QQ currency with the maturity of instant messaging market
it is undeniable that virtual currency makes us feel the convenience of purchasing network services, which is the inevitable proct of the development of network economy. But at present, the network virtual currency has quietly changed into a huge trading market
Lyndon larush, a famous American economist, once predicted that from 2050, the virtual currency of the Internet will be officially recognized to some extent and become a mobile currency. With such a large market and bright prospects, many companies are eager to try and intend to occupy this market. Now it seems that the network, PayPal (PayPal) and Tencent are in the leading position
at the present stage, most e-money is based on the existing real money (cash or deposit), which has the function of "value measurement" and "value preservation", and the precondition that e-money and real money can exchange at a ratio of 1
: 1 is established
as a means of payment, most e-money can not be separated from cash or deposit. It is transmitted and transferred by electronic means to pay off creditor's rights and debts and realize settlement. Therefore, the function and influence of e-money at present is essentially the relationship between e-money, cash and deposit
at present, there are four types of popular electronic currency in China
1. Stored value card electronic currency. Generally, it appears in the form of magnetic card or IC card. Besides commercial banks, it is also issued by telecommunication departments (ordinary telephone card, IC telephone card), IC enterprises (network card), commercial retail enterprises (various consumption cards), government organs (internal consumption IC card) and schools (Campus IC card). After the issuer receives the customer's funds in advance, it issues the equivalent stored value card, which makes the stored value card a new "deposit account" independent of the bank deposit. At the same time, the stored value card in the customer consumption to dect the way to pay fees, which is equivalent to the deposit account payment currency. At present, the deposits in the stored value cards are not included in the central bank's reserve requirements. Therefore, the stored value cards can rece the demand for cash and current savings
2. Credit card applied electronic currency. It refers to the credit card or quasi credit card issued by commercial banks, credit card companies and other issuers. The loan can be consumed within the credit limit specified by the issuer, and then the repayment can be made at the specified time. The widespread use of credit cards can expand consumer credit and affect money supply
3. They are mainly debit cards, electronic checks, etc., which are used to withdraw cash, transfer settlement and transfer funds from bank deposits in an electronic way. The widespread use of this kind of electronic payment method can rece the cost of consumers to and from the bank, rece the balance of cash demand, and speed up the circulation of money
4. Cash analog electronic currency. There are mainly two kinds: one is e-cash which is based on the Internet environment and keeps the binary data representing the value of money in the hard disk of the computer terminal; One is the electronic wallet that keeps the monetary value in the IC card and can be circulated without the bank payment system. This kind of e-money has the characteristics of anonymity of cash, can be used for payment between indivials, and can change hands many times. It is developed for the purpose of replacing entity cash. The expanding use of this kind of electronic currency can affect the currency issuing mechanism, rece the seigniorage income of the central bank, and rece the scale of assets and liabilities of the central bank
in order to provide better services, many portal websites and online game operators have been providing virtual currency for use for a long time. According to incomplete statistics, there are no less than 10 kinds of network virtual currency (referred to as network currency) currently in circulation, such as Q currency, network currency, cool currency, Warcraft currency, Paradise currency, Shanda (game area) coupon, etc. Take Q coin as an example, there are more than 200 million users. Instry insiders estimate that the domestic Internet has a virtual money market scale of several billion yuan per year, and is growing at a rate of 15% - 20%
in a market economy, demand stimulates innovation, which in turn stimulates demand. The increasing popularity of virtual currency is completed in the needs of users and the innovation of enterprises. At present, there are many kinds of virtual currency in China's network market, among which Tencent, relying on its huge QQ users, has timely launched QQ currency with the maturity of instant messaging market
it is undeniable that virtual currency makes us feel the convenience of purchasing network services, which is the inevitable proct of the development of network economy. But at present, the network virtual currency has quietly changed into a huge trading market
Lyndon larush, a famous American economist, once predicted that from 2050, the virtual currency of the Internet will be officially recognized to some extent and become a mobile currency. With such a large market and bright prospects, many companies are eager to try and intend to occupy this market. Now it seems that the network, PayPal (PayPal) and Tencent are in the leading position
at the present stage, most e-money is based on the existing real money (cash or deposit), which has the function of "value measurement" and "value preservation", and the precondition that e-money and real money can exchange at a ratio of 1
: 1 is established
as a means of payment, most e-money can not be separated from cash or deposit. It is transmitted and transferred by electronic means to pay off creditor's rights and debts and realize settlement. Therefore, the function and influence of e-money at present is essentially the relationship between e-money, cash and deposit
at present, there are four types of popular electronic currency in China
1. Stored value card electronic currency. Generally, it appears in the form of magnetic card or IC card. Besides commercial banks, it is also issued by telecommunication departments (ordinary telephone card, IC telephone card), IC enterprises (network card), commercial retail enterprises (various consumption cards), government organs (internal consumption IC card) and schools (Campus IC card). After the issuer receives the customer's funds in advance, it issues the equivalent stored value card, which makes the stored value card a new "deposit account" independent of the bank deposit. At the same time, the stored value card in the customer consumption to dect the way to pay fees, which is equivalent to the deposit account payment currency. At present, the deposits in the stored value cards are not included in the central bank's reserve requirements. Therefore, the stored value cards can rece the demand for cash and current savings
2. Credit card applied electronic currency. It refers to the credit card or quasi credit card issued by commercial banks, credit card companies and other issuers. The loan can be consumed within the credit limit specified by the issuer, and then the repayment can be made at the specified time. The widespread use of credit cards can expand consumer credit and affect money supply
3. They are mainly debit cards, electronic checks, etc., which are used to withdraw cash, transfer settlement and transfer funds from bank deposits in an electronic way. The widespread use of this kind of electronic payment method can rece the cost of consumers to and from the bank, rece the balance of cash demand, and speed up the circulation of money
4. Cash analog electronic currency. There are mainly two kinds: one is e-cash which is based on the Internet environment and keeps the binary data representing the value of money in the hard disk of the computer terminal; One is the electronic wallet that keeps the monetary value in the IC card and can be circulated without the bank payment system. This kind of e-money has the characteristics of anonymity of cash, can be used for payment between indivials, and can change hands many times. It is developed for the purpose of replacing entity cash. The expanding use of this kind of electronic currency can affect the currency issuing mechanism, rece the seigniorage income of the central bank, and rece the scale of assets and liabilities of the central bank
3. Due to the lack of legal provisions, the handling of the theft of virtual property, which is different from the real theft, is very inconsistent in different places: some public security organs do not file a case, some impose a warning, fine or public security detention on the perpetrator in accordance with the relevant provisions of the regulations on the security protection of computer information systems and the administrative measures for the security protection of computer information network international networking; Some courts have convicted and sentenced the defendant for theft, while others think that this is not in line with the principle of a legally prescribed punishment for a specified crime. Because the virtual property such as q-coin has not been regarded as a property right in law, they have sentenced the defendant to the crime of obstructing the freedom of communication. Different courts have ruled that in online games, many game masters can sell these game coins after earning a lot of game coins. This also includes some network hackers who steal the QQ number and then the QQ coin bound with the QQ number. These people often change the stolen Q currency into game currency, and then change the game currency into Q currency to launder money, and then sell it for cash
case 1 recently, the court of Jinjiang District of Cheng sentenced Yang Xiaolong, a "cyber thief", to eight months' imprisonment for theft. Yang Xiaolong has repeatedly stolen the virtual currency in seven online game recharge accounts of a company in Cheng, and used the virtual currency to buy game cards to sell money, making an illegal profit of more than 1300 yuan
case 2: in a previous case of QQ number theft decided by Shenzhen intermediate people's court, the prosecutor initiated a public prosecution in accordance with the crime of theft. However, the judge held that QQ number has not been regarded as a property right in China's law, so it did not support the determination of theft and sentenced the defendant to the crime of obstructing freedom of communication
in case 3, ring the two periods of September 29, 2004 and August to October, 2004, many players in the online game "Dahua Xiyou II" (Netease operation) found their equipment stolen one after another. On November 9, 2004, Netease reported the case to the Internet Supervision Department of Guangzhou Public Security Bureau, and the police arrested the suspect while concting offline transactions. On December 25, 2005, Tianhe District Court of Guangzhou city declared him guilty of theft and fined him 5000 yuan. The defendant refused and appealed. At the end of March 2006, the second instance of Guangzhou intermediate people's court decided to reject the appeal and maintain the original judgment
in case 4, from March to July 2005, the defendants Zeng and Yang sold the cracked QQ number to others. The two defendants sold more than 160 QQ numbers and got more than 70000 yuan of stolen money. On November 28, 2005, Shenzhen Nanshan procuratorate sued Zeng and Yang for theft to Shenzhen Nanshan District People's court. Nanshan District People's court held a trial on December 9, 2005, and made a judgment on January 13, 2006. The two defendants were sentenced to six months' detention for the crime of infringing freedom of communication
is virtual property protected by law
no matter Tencent q-coin or Sina u-coin, they are just data symbols used to represent certain goods or services provided by an Internet manufacturer. So far, no bank has been involved in the launch of this "network virtual currency". Because there is some competition between manufacturers, their "network virtual currency" system is often independent of each other. Therefore, "network virtual currency" can not circulate in real society like RMB. In addition, the "network virtual currency" is only a kind of delivery voucher, and almost all manufacturers that launch the "network virtual currency" do not provide the service of "network virtual currency" cashing back. The two-way or even multi-directional circulation is the basis of money being able to act as a general equivalent. The characteristic of "one-way circulation" determines that "network virtual currency" cannot act as a general equivalent. Unless we can freely and legally convert this "delivery voucher" into real cash or electronic currency. Therefore, it is only a virtual property, not a real property, and can not be the object of legal protection in China
online virtual property theft, which is characterized by stealing and selling online game accounts of major online game companies, Tencent QQ coins and game equipment, is expanding and upgrading. This not only seriously damages the legitimate rights and interests of users, but also poses a great threat to the normal operation of Internet enterprises. Therefore, the case of network virtual property theft can be classified as theft, the victim can report the situation to the public security department, but there must be two kinds of proof to file a case: one is that the victim must prove that he really owns the virtual property, the other is that there is evidence to prove that his virtual property is really stolen. If two kinds of proof are available, and the suspect is found, he can be convicted. Because, at present, the National People's Congress has not legislated on this, and this kind of case belongs to special theft, that is, this kind of crime can be punished as theft
there are mainly three views on the legal attribute of network virtual property in the theoretical and judicial circles, namely, the theory of property rights, the theory of intellectual property rights and the theory of creditor's rights. Although the network virtual property is different from the general property, but in my opinion, it is intangible property. Article 75 of China's general principles of civil law clearly stipulates that "citizens' personal property includes citizens' lawful income, houses, savings, daily necessities, cultural relics, books and materials, trees, livestock, means of proction and other lawful property that are permitted by law to be owned by citizens."“ "Other legal property" can be interpreted broadly, and network virtual property such as q-coin and virtual weapons can be classified as "other legal property" because of their basic properties. Citizen's property includes both tangible and intangible. Network virtual property should be one of intangible assets. Q-coin can be purchased directly from game developers, or obtained from the virtual currency market, so it has the property of general commodity. But whether it is creditor's rights or property rights, or intellectual property rights, this issue is the root of the current judicial and academic disputes. Virtual property is a kind of property with legal significance, which should be protected by law. As a kind of intangible property, virtual property has its own unique attributes and characteristics, which is different from the traditional tangible property and intangible property. The protection of virtual property should not be included in the category of real right or creditor's right mechanically, so it is necessary to protect it by separate legislation. The acquisition of virtual property needs to pay the corresponding time, energy and money, which has the characteristics of virtual space, tradability, value and time limit. In the network virtual space and time limit, it reflects the property value of virtual property, and shows the actual material interests in real life. It is precisely because of the transaction and value of the virtual property, as well as the paid nature of the acquisition, that the virtual property has the property nature. On the other hand, virtual property can also be possessed, used, benefited and disposed, and become the object of legal relationship. Therefore, virtual property should be protected by property law. Can theft of virtual property be punished as theft? At present, there are many kinds of currencies in the virtual market, such as Tencent Q currency, internet currency, Netease bubble currency, Sina u currency, Warcraft currency, Paradise currency, Shanda counting, etc. Take Q coin as an example, the number of users provided by Tencent is more than 200 million. Instry insiders estimate that the domestic Internet has a virtual money market scale of several billion yuan per year. Although the virtual currency market has a large scale, but the virtual currency stolen, "Filing" still has no legal basis? Virtual currency itself has no other transaction function, so it can be said that virtual currency is not a property right recognized by law. However, with the unlimited issuance of q-coin and the constant limited consumption of virtual procts, it will lead to the relative surplus of q-coin and the inflation of virtual world. At present, it is urgent to standardize the order of the virtual currency market, instead of blindly "Filing" protection, so that the public feel that the virtual currency is equivalent to RMB. When the network virtual property is stolen and cheated, we can also use the criminal law to punish criminals. At present, the court for the crime of network virtual property, some to be punished by theft, some to violate the freedom of communication to be punished. One of the reasons for different approaches is the lack of unified qualitative analysis of network virtual property. If we define the network virtual property as a kind of property, these problems can also be effectively solved. For example, some people steal virtual property or cheat for the purpose of illegal possession. If the amount of theft or fraud reaches the standard of "large amount", their behavior can be defined as theft or fraud. Of course, when the actor steals the network virtual property, his intrusion into the computer system and other means may also violate the crime of destroying the computer information system and other crimes. The combination of means and purpose constitutes an implicated crime, which can be dealt with again. What is q-coin Tencent q-coin is a virtual currency that can be paid uniformly on Tencent website. The face values of q-coin are 1 yuan, 2 yuan, 5 yuan, 10 yuan and 20 yuan respectively. For the q-coin obtained by users using the application method of dialing voice call, the expression form of 1 yuan face value q-coin is a 12 digit number string, and the expression form of 2 yuan, 5 yuan, 10 yuan and 20 yuan q-coin is a 14 digit number string starting with 2, 5, 1 and 8 respectively. The applied q-coin can purchase a series of related services on Tencent website, and input the corresponding q-coin amount according to the corresponding prompt when purchasing. At present, q-coin card can be used to apply for QQ bank number, purchase QQ beautiful number, QQ member service, QQ dating, QQ greeting card and other services. According to Tencent, a series of wonderful personalized value-added services will be launched later. Zhao Yiyong (judge of Zhengzhou high tech Instrial Development Zone, master of law): Disputes between players and thieves and between players and operators caused by the theft of virtual property. Once the virtual property is stolen, it is often difficult for users to find the thief, or it is difficult to provide evidence although they can find it. Therefore, once the virtual property is stolen, they often ask the operator for assistance and provide evidence, and most of them directly resort to the court on the ground that the operator does not fulfill its security obligations. From a technical point of view, game operators have the ability to help players save historical data and prevent data loss; From a legal point of view, game operators are also obliged to save historical data, prevent data loss and reproce game data e to charging players. Because the relationship between users and game operators is a service contract, according to the basic principles of China's "contract law", if the user's loss is caused by the game operators' failure to fulfill their ty of care, or major defects in program technology, then the game operators should bear the liability for breach of contract, including compensation for losses, restitution, and continued performance. If the game operator has no fault and the loss is caused by the infringement of a third party, it should directly claim to the infringer
legislation of virtual property protection suggests that in the absence of legislation on virtual property protection in China, network enterprises should apply the form of instry self-discipline to protect the interests of users. At the same time, we should speed up the formulation of relevant legislation or judicial interpretation. The specific measures include: (1) giving virtual property a legal status from the level of judicial interpretation 2 Add criminal legislation to protect computer data 3 Standardize the order of virtual property transactions, and ensure the security of virtual property transactions. It is suggested that the best way to deal with virtual property is through legal means
case 1 recently, the court of Jinjiang District of Cheng sentenced Yang Xiaolong, a "cyber thief", to eight months' imprisonment for theft. Yang Xiaolong has repeatedly stolen the virtual currency in seven online game recharge accounts of a company in Cheng, and used the virtual currency to buy game cards to sell money, making an illegal profit of more than 1300 yuan
case 2: in a previous case of QQ number theft decided by Shenzhen intermediate people's court, the prosecutor initiated a public prosecution in accordance with the crime of theft. However, the judge held that QQ number has not been regarded as a property right in China's law, so it did not support the determination of theft and sentenced the defendant to the crime of obstructing freedom of communication
in case 3, ring the two periods of September 29, 2004 and August to October, 2004, many players in the online game "Dahua Xiyou II" (Netease operation) found their equipment stolen one after another. On November 9, 2004, Netease reported the case to the Internet Supervision Department of Guangzhou Public Security Bureau, and the police arrested the suspect while concting offline transactions. On December 25, 2005, Tianhe District Court of Guangzhou city declared him guilty of theft and fined him 5000 yuan. The defendant refused and appealed. At the end of March 2006, the second instance of Guangzhou intermediate people's court decided to reject the appeal and maintain the original judgment
in case 4, from March to July 2005, the defendants Zeng and Yang sold the cracked QQ number to others. The two defendants sold more than 160 QQ numbers and got more than 70000 yuan of stolen money. On November 28, 2005, Shenzhen Nanshan procuratorate sued Zeng and Yang for theft to Shenzhen Nanshan District People's court. Nanshan District People's court held a trial on December 9, 2005, and made a judgment on January 13, 2006. The two defendants were sentenced to six months' detention for the crime of infringing freedom of communication
is virtual property protected by law
no matter Tencent q-coin or Sina u-coin, they are just data symbols used to represent certain goods or services provided by an Internet manufacturer. So far, no bank has been involved in the launch of this "network virtual currency". Because there is some competition between manufacturers, their "network virtual currency" system is often independent of each other. Therefore, "network virtual currency" can not circulate in real society like RMB. In addition, the "network virtual currency" is only a kind of delivery voucher, and almost all manufacturers that launch the "network virtual currency" do not provide the service of "network virtual currency" cashing back. The two-way or even multi-directional circulation is the basis of money being able to act as a general equivalent. The characteristic of "one-way circulation" determines that "network virtual currency" cannot act as a general equivalent. Unless we can freely and legally convert this "delivery voucher" into real cash or electronic currency. Therefore, it is only a virtual property, not a real property, and can not be the object of legal protection in China
online virtual property theft, which is characterized by stealing and selling online game accounts of major online game companies, Tencent QQ coins and game equipment, is expanding and upgrading. This not only seriously damages the legitimate rights and interests of users, but also poses a great threat to the normal operation of Internet enterprises. Therefore, the case of network virtual property theft can be classified as theft, the victim can report the situation to the public security department, but there must be two kinds of proof to file a case: one is that the victim must prove that he really owns the virtual property, the other is that there is evidence to prove that his virtual property is really stolen. If two kinds of proof are available, and the suspect is found, he can be convicted. Because, at present, the National People's Congress has not legislated on this, and this kind of case belongs to special theft, that is, this kind of crime can be punished as theft
there are mainly three views on the legal attribute of network virtual property in the theoretical and judicial circles, namely, the theory of property rights, the theory of intellectual property rights and the theory of creditor's rights. Although the network virtual property is different from the general property, but in my opinion, it is intangible property. Article 75 of China's general principles of civil law clearly stipulates that "citizens' personal property includes citizens' lawful income, houses, savings, daily necessities, cultural relics, books and materials, trees, livestock, means of proction and other lawful property that are permitted by law to be owned by citizens."“ "Other legal property" can be interpreted broadly, and network virtual property such as q-coin and virtual weapons can be classified as "other legal property" because of their basic properties. Citizen's property includes both tangible and intangible. Network virtual property should be one of intangible assets. Q-coin can be purchased directly from game developers, or obtained from the virtual currency market, so it has the property of general commodity. But whether it is creditor's rights or property rights, or intellectual property rights, this issue is the root of the current judicial and academic disputes. Virtual property is a kind of property with legal significance, which should be protected by law. As a kind of intangible property, virtual property has its own unique attributes and characteristics, which is different from the traditional tangible property and intangible property. The protection of virtual property should not be included in the category of real right or creditor's right mechanically, so it is necessary to protect it by separate legislation. The acquisition of virtual property needs to pay the corresponding time, energy and money, which has the characteristics of virtual space, tradability, value and time limit. In the network virtual space and time limit, it reflects the property value of virtual property, and shows the actual material interests in real life. It is precisely because of the transaction and value of the virtual property, as well as the paid nature of the acquisition, that the virtual property has the property nature. On the other hand, virtual property can also be possessed, used, benefited and disposed, and become the object of legal relationship. Therefore, virtual property should be protected by property law. Can theft of virtual property be punished as theft? At present, there are many kinds of currencies in the virtual market, such as Tencent Q currency, internet currency, Netease bubble currency, Sina u currency, Warcraft currency, Paradise currency, Shanda counting, etc. Take Q coin as an example, the number of users provided by Tencent is more than 200 million. Instry insiders estimate that the domestic Internet has a virtual money market scale of several billion yuan per year. Although the virtual currency market has a large scale, but the virtual currency stolen, "Filing" still has no legal basis? Virtual currency itself has no other transaction function, so it can be said that virtual currency is not a property right recognized by law. However, with the unlimited issuance of q-coin and the constant limited consumption of virtual procts, it will lead to the relative surplus of q-coin and the inflation of virtual world. At present, it is urgent to standardize the order of the virtual currency market, instead of blindly "Filing" protection, so that the public feel that the virtual currency is equivalent to RMB. When the network virtual property is stolen and cheated, we can also use the criminal law to punish criminals. At present, the court for the crime of network virtual property, some to be punished by theft, some to violate the freedom of communication to be punished. One of the reasons for different approaches is the lack of unified qualitative analysis of network virtual property. If we define the network virtual property as a kind of property, these problems can also be effectively solved. For example, some people steal virtual property or cheat for the purpose of illegal possession. If the amount of theft or fraud reaches the standard of "large amount", their behavior can be defined as theft or fraud. Of course, when the actor steals the network virtual property, his intrusion into the computer system and other means may also violate the crime of destroying the computer information system and other crimes. The combination of means and purpose constitutes an implicated crime, which can be dealt with again. What is q-coin Tencent q-coin is a virtual currency that can be paid uniformly on Tencent website. The face values of q-coin are 1 yuan, 2 yuan, 5 yuan, 10 yuan and 20 yuan respectively. For the q-coin obtained by users using the application method of dialing voice call, the expression form of 1 yuan face value q-coin is a 12 digit number string, and the expression form of 2 yuan, 5 yuan, 10 yuan and 20 yuan q-coin is a 14 digit number string starting with 2, 5, 1 and 8 respectively. The applied q-coin can purchase a series of related services on Tencent website, and input the corresponding q-coin amount according to the corresponding prompt when purchasing. At present, q-coin card can be used to apply for QQ bank number, purchase QQ beautiful number, QQ member service, QQ dating, QQ greeting card and other services. According to Tencent, a series of wonderful personalized value-added services will be launched later. Zhao Yiyong (judge of Zhengzhou high tech Instrial Development Zone, master of law): Disputes between players and thieves and between players and operators caused by the theft of virtual property. Once the virtual property is stolen, it is often difficult for users to find the thief, or it is difficult to provide evidence although they can find it. Therefore, once the virtual property is stolen, they often ask the operator for assistance and provide evidence, and most of them directly resort to the court on the ground that the operator does not fulfill its security obligations. From a technical point of view, game operators have the ability to help players save historical data and prevent data loss; From a legal point of view, game operators are also obliged to save historical data, prevent data loss and reproce game data e to charging players. Because the relationship between users and game operators is a service contract, according to the basic principles of China's "contract law", if the user's loss is caused by the game operators' failure to fulfill their ty of care, or major defects in program technology, then the game operators should bear the liability for breach of contract, including compensation for losses, restitution, and continued performance. If the game operator has no fault and the loss is caused by the infringement of a third party, it should directly claim to the infringer
legislation of virtual property protection suggests that in the absence of legislation on virtual property protection in China, network enterprises should apply the form of instry self-discipline to protect the interests of users. At the same time, we should speed up the formulation of relevant legislation or judicial interpretation. The specific measures include: (1) giving virtual property a legal status from the level of judicial interpretation 2 Add criminal legislation to protect computer data 3 Standardize the order of virtual property transactions, and ensure the security of virtual property transactions. It is suggested that the best way to deal with virtual property is through legal means
4. At present, China does not have a complete legal supervision system for virtual currency. The only time was on December 5, 2013, the central bank and other five ministries and commissions jointly issued the bitcoin risk notice. In the notice, bitcoin was clearly defined as a special Internet commodity, and people could buy and sell it freely at their own risk, denying its monetary attribute. No financial institution was allowed to carry out relevant bitcoin business. Zhou Xiaochuan, the governor of the central bank, compares bitcoin to a tradable asset like a stamp
most countries in the world also adopt a conservative and cautious attitude towards bitcoin. Some think bitcoin is an asset, while others think it is a currency. In the United States, different states have different attitudes towards bitcoin and other virtual currencies. Companies related to bitcoin in New York State need to apply for licenses to carry out business. California recognizes the legitimacy of bitcoin and other virtual currencies, and the operators need to register legally. Fuyuan coin is a legal registration in California.
most countries in the world also adopt a conservative and cautious attitude towards bitcoin. Some think bitcoin is an asset, while others think it is a currency. In the United States, different states have different attitudes towards bitcoin and other virtual currencies. Companies related to bitcoin in New York State need to apply for licenses to carry out business. California recognizes the legitimacy of bitcoin and other virtual currencies, and the operators need to register legally. Fuyuan coin is a legal registration in California.
5. When bitcoin was first born in 2009, there was no concept of blockchain. At that time, bitcoin was represented by lowercase bitcoin and the underlying technology of bitcoin was represented by uppercase bitcoin. In 2015, an economist published an article on blockchain, and many countries in the world joined in. In September 2017, the Chinese government website published the article "China's blockchain instry is expected to be in the forefront of the world", which openly supported the development of blockchain technology and popularized blockchain technology to 1.3 billion Chinese people. The application of blockchain in finance, insurance, retail, notarization and other real economy fields began to accelerate.
6. The future development direction of blockchain technology is to serve the real economy
in the past two days, blockchain has only stayed on the slogan, and there are very few real applications. Blockchain has become the synonym of ICO in 2017. Most projects are purely for the purpose of issuing money and collecting money, and they have not really considered doing projects
when the bear market comes, blockchain projects break down, and team running has become a common practice. Few teams do things like wikichain. Most of the projects that people outside the coin circle do are unreliable. It's better to stay away from them. Jingdong, Internet and Alibaba are also making efforts on the blockchain, and have made certain achievements. In the future, blockchain projects serving the real economy will be a general direction.
in the past two days, blockchain has only stayed on the slogan, and there are very few real applications. Blockchain has become the synonym of ICO in 2017. Most projects are purely for the purpose of issuing money and collecting money, and they have not really considered doing projects
when the bear market comes, blockchain projects break down, and team running has become a common practice. Few teams do things like wikichain. Most of the projects that people outside the coin circle do are unreliable. It's better to stay away from them. Jingdong, Internet and Alibaba are also making efforts on the blockchain, and have made certain achievements. In the future, blockchain projects serving the real economy will be a general direction.
7. Relying on the development of the network, social economy, culture and political life are undergoing an unprecedented change, and all kinds of network crimes pose an omni-directional and non negligible challenge to this change. Based on the new characteristics of fraud crime in e-commerce activities and the standpoint of criminal law, this paper puts forward its own views in order to contribute to judicial practice and criminal law theory< The new characteristics of e-fraud in e-commerce are as follows:
the crime of fraud in e-commerce is the act of fabricating facts or concealing the truth through the network information system for the purpose of illegal possession to defraud a large amount of property. In legal form, the crime of fraud in e-commerce transcends the common crime of fraud and the special crime of fraud stipulated in the current criminal law, but in real life, it is only one form of these crimes
the traditional crime of fraud, using modern network technology, can be divided into two types: one is to send false information on the Internet to defraud the victim to agree to deliver some property to the actor; One is to enter the specific network information system as other authorized person, add and input certain information in the network information system, transfer the electronic currency owned or occupied by the authorized person to his own account, and then cash it. The former kind of behavior is only the renovation of the crime of fraud. From the perspective of criminal law, the existing criminal law theory can solve the problems. The latter kind of objective behavior is different from the common crime of fraud and the special crime of fraud in criminal law. In order to distinguish it from the former kinds of behavior and facilitate discussion, this paper calls it e-fraud
the main ways to commit crimes with the network as a tool are: Mobile skylight, Trojan horse, Italian sausage, data fraud, worm, logic bomb, impostor, opportunity intrusion, instrument scanning, password cracking and information interception, etc. However, e-fraud is only a part of these methods. In order to obtain e-money, the actor generally does not take the method of destroying the information system, but uses the technical weakness in the network to achieve the purpose
the main steps of e-fraud crime: the first step is to obtain the right information. Authorized information includes access rights, such as the identity of the authorized person, access rights, key and password. The way to obtain the right information is not only by means of inquiring, listening and collecting, but also by using technology to intercept information. For example, the actor can connect on the Internet or telephone network, or install electromagnetic wave interception equipment to obtain the transmitted system information. Some even get useful information by analyzing the direction, flow, communication frequency and length of information flow. The second step is to change the information. Such as changing the order and direction of information flow, adding, deleting and changing information content. Because the network information system is affected by the force, the operation of the equipment and facilities supported by it will be confused, or the wrong instructions will be issued. As a result, the electronic money on the account of others will be transferred to the account opened by the actor through the network. The third step is information cashing, that is, the actor spends the electronic money or converts it into paper money in consumption. This is because fraud is a consequential offense
generally, the network is regarded as a virtual society, which is very important for the understanding of network crime. We may as well divide the place where cyber crime occurs into virtual space and real space. In this way, e-fraud criminal activities can be divided into three types in criminal law besides discontinuing crime: first, the preparatory crime that occurs in the real stage, such as the perpetrator seeking the password and pass by analyzing the documents and papers abandoned by the victim. Second, preparatory crime and attempted crime in virtual space. Third, the attempted crime and accomplished crime in the real space< Second, the object of e-fraud is different from other types of fraud in the way of obtaining property. In general fraud, there is a certain meaning communication between the perpetrator and a certain natural person, namely "person person dialogue"; However, the crime of e-fraud is not the case. The perpetrator achieves his primary purpose by means of "human machine dialogue". It is precisely because of the technical characteristics of man-machine dialogue that what the perpetrator obtains is only a number symbol representing a certain amount of money. Therefore, there is no final conclusion as to whether the object of this crime is a data record or a data carrier, or a cash object. When some scholars study the use of computers to steal electronic funds, they put forward that electronic funds should be taken as the object of theft, so that the object of crime is "the electronic data records that exist in the electronic funds transfer system and represent a certain asset ownership relationship"
the reasons are as follows: first, the content of the object of theft should be expanded with the development of society; Second, the electronic fund is different from the general knowledge information. If we want to transfer the fund from other people's account to our own account secretly, the fund in the victim's account must be reced accordingly, otherwise the computer will refuse to run; Third, the nature of electronic funds is the same as that of negotiable payment voucher, negotiable securities and negotiable notes. Since the latter can be regarded as the object of crime, there is no reason to refuse to regard the former as the object of crime; Fourthly, electric power, gas, natural gas and telecommunication services have been defined as the objects of larceny in criminal law and judicial interpretation, and electronic funds should also be regarded as the objects of larceny; Fifthly, it is beneficial to protect financial property to classify electronic funds as the object of larceny
the essence of these reasons is to propose that intangible objects can be the object of crime. Indeed, some scholars hold that "the object of crime is people or things. The object is an objective existence which is not transferred by human will; The existence form of things is time and space, and the external expression of things is state; Things include tangible things and intangible things. "
this seems to support the above view. Because in the final analysis, e-money, like electricity, gas, natural gas and telecommunications services, is an intangible thing
in the past, the author thought that the object of the crime was the carrier representing the electronic currency, such as electronic bills, electronic wallets, electronic wallet, etc., but now, after careful consideration, I think it is inappropriate, and I think that money and goods are still the object of the crime. The reasons are as follows: first, if we regard the intangible as the object of crime without distinction, we almost equate the object of criminal law with the object of philosophy. In this way, it will undoubtedly expand the scope of the object of crime. There are also differences in the legal and value attributes of intangibles. Take electronic currency symbol and gas as examples. The former is occupied by specific loss or loss of value, while the latter is not enough to indicate the loss or loss of value. When the authorized person finds that there is a problem in his account fund, he can send a notice, The intention of the actor is blocked. It is reasonable to regard the former as the object of crime, but it is difficult to regard the latter as the object of crime by analogy with the former. Second, if the electronic currency symbol is regarded as the object of crime, it will lead to the opposite conclusion with the general crime of fraud. According to the traditional theory of criminal law, "the object of crime refers to the concrete person or object that the criminal act stipulated in the specific provisions of criminal law acts on."
the object of crime is not only a specific object, but also the damage of the object. If we think that e-money is the object of crime, that is to say, the actor has possessed the symbol of e-money, it will result in actual harm, that is, accomplished crime. As mentioned before, the crime of e-fraud is an isolated crime, and the time and place between the act and the actual result may be inconsistent; In addition, the crime is a consequential offense, and the actor's possession of digital symbols does not mean that he has obtained money. The key to the accomplished standard of fraud is that the actor has obtained a large amount of property. Therefore, taking electronic currency symbols as the object of crime will advance the standard of accomplished crime and expand the scope of criminal punishment. Thirdly, the author thinks that it is necessary to distinguish between the object of crime and the object of behavior. As the object of the act, it is the initial purpose that the actor hopes to achieve when the act is carried out. It is the symbol of the object of the crime. The object of this crime is electronic currency or digital symbol. There are also differences between electronic money and electronic money means of payment. The common and legal means of e-money payment in nerd business activities are as follows:
1, e-ticket. Common e-tickets include: user opinion and proct demand questionnaire, proct buyer information feedback and maintenance or security information feedback form, proct (commodity) quotation application form, quotation, order form. It should be noted that electronic data interchange (EDI) is constantly improving and developing. Its purpose is to completely realize the electronic ticket transmission, also known as paperless trade. At present, e to the limitations of traditional concepts and technologies, electronic tickets and paper tickets can only be used at the same time. But if we focus on the long-term, the author can not deny the significance of e-ticket for crime. In fact, in many countries and some economically developed areas of our country, the paper ticket has been reced from the previous only or major status to the secondary or auxiliary status, which can explain the problem
2, electronic wallet. It is issued through the certification center of the network system, including the certified credit card, ID card, etc. Users can use the electronic wallet to complete the operation anytime and anywhere, and the information about personal, credit card and password can be directly transmitted to the bank for payment and settlement
3, smart card. It can make small cash payment directly in the network, and download cash from the bank account through the Internet to ensure the convenience of e-cash. It can also be attached with a password to ensure safe use. In addition, it also has the function of identity identification and government welfare. For example, in schools, the use of smart cards can verify the identity of teachers and students; It can also be used as an electronic currency to pay for meals, ing, laundry and even as a dormitory key. In the United States, it is estimated that 80% of financial transactions are electronic payments
4, electronic bill. Bills include bills of exchange, promissory notes and cheques. Electronic bills are mainly electronic checks. As early as 1995, some big banks and computer companies in the United States jointly developed and publicly demonstrated the electronic check trading system using the Internet, and predicted that "this system may cause a revolution in banking transactions". Singapore has also developed the first electronic check system in Asia in recent years. In China, because of the restriction of bill law in 1996, electronic bill is still blank. However, the author is convinced that with the establishment of China Financial Certification Center and the determination of the legal status of digital signature in electronic payment, coupled with the development of network technology and the strengthening of practical needs, electronic bill will become an important means of payment in the future
5, e-bank account. E-banking provides information inquiry, currency payment, savings business, settlement, online investment, financial management and other services for enterprises or indivials. Among them, 1
the crime of fraud in e-commerce is the act of fabricating facts or concealing the truth through the network information system for the purpose of illegal possession to defraud a large amount of property. In legal form, the crime of fraud in e-commerce transcends the common crime of fraud and the special crime of fraud stipulated in the current criminal law, but in real life, it is only one form of these crimes
the traditional crime of fraud, using modern network technology, can be divided into two types: one is to send false information on the Internet to defraud the victim to agree to deliver some property to the actor; One is to enter the specific network information system as other authorized person, add and input certain information in the network information system, transfer the electronic currency owned or occupied by the authorized person to his own account, and then cash it. The former kind of behavior is only the renovation of the crime of fraud. From the perspective of criminal law, the existing criminal law theory can solve the problems. The latter kind of objective behavior is different from the common crime of fraud and the special crime of fraud in criminal law. In order to distinguish it from the former kinds of behavior and facilitate discussion, this paper calls it e-fraud
the main ways to commit crimes with the network as a tool are: Mobile skylight, Trojan horse, Italian sausage, data fraud, worm, logic bomb, impostor, opportunity intrusion, instrument scanning, password cracking and information interception, etc. However, e-fraud is only a part of these methods. In order to obtain e-money, the actor generally does not take the method of destroying the information system, but uses the technical weakness in the network to achieve the purpose
the main steps of e-fraud crime: the first step is to obtain the right information. Authorized information includes access rights, such as the identity of the authorized person, access rights, key and password. The way to obtain the right information is not only by means of inquiring, listening and collecting, but also by using technology to intercept information. For example, the actor can connect on the Internet or telephone network, or install electromagnetic wave interception equipment to obtain the transmitted system information. Some even get useful information by analyzing the direction, flow, communication frequency and length of information flow. The second step is to change the information. Such as changing the order and direction of information flow, adding, deleting and changing information content. Because the network information system is affected by the force, the operation of the equipment and facilities supported by it will be confused, or the wrong instructions will be issued. As a result, the electronic money on the account of others will be transferred to the account opened by the actor through the network. The third step is information cashing, that is, the actor spends the electronic money or converts it into paper money in consumption. This is because fraud is a consequential offense
generally, the network is regarded as a virtual society, which is very important for the understanding of network crime. We may as well divide the place where cyber crime occurs into virtual space and real space. In this way, e-fraud criminal activities can be divided into three types in criminal law besides discontinuing crime: first, the preparatory crime that occurs in the real stage, such as the perpetrator seeking the password and pass by analyzing the documents and papers abandoned by the victim. Second, preparatory crime and attempted crime in virtual space. Third, the attempted crime and accomplished crime in the real space< Second, the object of e-fraud is different from other types of fraud in the way of obtaining property. In general fraud, there is a certain meaning communication between the perpetrator and a certain natural person, namely "person person dialogue"; However, the crime of e-fraud is not the case. The perpetrator achieves his primary purpose by means of "human machine dialogue". It is precisely because of the technical characteristics of man-machine dialogue that what the perpetrator obtains is only a number symbol representing a certain amount of money. Therefore, there is no final conclusion as to whether the object of this crime is a data record or a data carrier, or a cash object. When some scholars study the use of computers to steal electronic funds, they put forward that electronic funds should be taken as the object of theft, so that the object of crime is "the electronic data records that exist in the electronic funds transfer system and represent a certain asset ownership relationship"
the reasons are as follows: first, the content of the object of theft should be expanded with the development of society; Second, the electronic fund is different from the general knowledge information. If we want to transfer the fund from other people's account to our own account secretly, the fund in the victim's account must be reced accordingly, otherwise the computer will refuse to run; Third, the nature of electronic funds is the same as that of negotiable payment voucher, negotiable securities and negotiable notes. Since the latter can be regarded as the object of crime, there is no reason to refuse to regard the former as the object of crime; Fourthly, electric power, gas, natural gas and telecommunication services have been defined as the objects of larceny in criminal law and judicial interpretation, and electronic funds should also be regarded as the objects of larceny; Fifthly, it is beneficial to protect financial property to classify electronic funds as the object of larceny
the essence of these reasons is to propose that intangible objects can be the object of crime. Indeed, some scholars hold that "the object of crime is people or things. The object is an objective existence which is not transferred by human will; The existence form of things is time and space, and the external expression of things is state; Things include tangible things and intangible things. "
this seems to support the above view. Because in the final analysis, e-money, like electricity, gas, natural gas and telecommunications services, is an intangible thing
in the past, the author thought that the object of the crime was the carrier representing the electronic currency, such as electronic bills, electronic wallets, electronic wallet, etc., but now, after careful consideration, I think it is inappropriate, and I think that money and goods are still the object of the crime. The reasons are as follows: first, if we regard the intangible as the object of crime without distinction, we almost equate the object of criminal law with the object of philosophy. In this way, it will undoubtedly expand the scope of the object of crime. There are also differences in the legal and value attributes of intangibles. Take electronic currency symbol and gas as examples. The former is occupied by specific loss or loss of value, while the latter is not enough to indicate the loss or loss of value. When the authorized person finds that there is a problem in his account fund, he can send a notice, The intention of the actor is blocked. It is reasonable to regard the former as the object of crime, but it is difficult to regard the latter as the object of crime by analogy with the former. Second, if the electronic currency symbol is regarded as the object of crime, it will lead to the opposite conclusion with the general crime of fraud. According to the traditional theory of criminal law, "the object of crime refers to the concrete person or object that the criminal act stipulated in the specific provisions of criminal law acts on."
the object of crime is not only a specific object, but also the damage of the object. If we think that e-money is the object of crime, that is to say, the actor has possessed the symbol of e-money, it will result in actual harm, that is, accomplished crime. As mentioned before, the crime of e-fraud is an isolated crime, and the time and place between the act and the actual result may be inconsistent; In addition, the crime is a consequential offense, and the actor's possession of digital symbols does not mean that he has obtained money. The key to the accomplished standard of fraud is that the actor has obtained a large amount of property. Therefore, taking electronic currency symbols as the object of crime will advance the standard of accomplished crime and expand the scope of criminal punishment. Thirdly, the author thinks that it is necessary to distinguish between the object of crime and the object of behavior. As the object of the act, it is the initial purpose that the actor hopes to achieve when the act is carried out. It is the symbol of the object of the crime. The object of this crime is electronic currency or digital symbol. There are also differences between electronic money and electronic money means of payment. The common and legal means of e-money payment in nerd business activities are as follows:
1, e-ticket. Common e-tickets include: user opinion and proct demand questionnaire, proct buyer information feedback and maintenance or security information feedback form, proct (commodity) quotation application form, quotation, order form. It should be noted that electronic data interchange (EDI) is constantly improving and developing. Its purpose is to completely realize the electronic ticket transmission, also known as paperless trade. At present, e to the limitations of traditional concepts and technologies, electronic tickets and paper tickets can only be used at the same time. But if we focus on the long-term, the author can not deny the significance of e-ticket for crime. In fact, in many countries and some economically developed areas of our country, the paper ticket has been reced from the previous only or major status to the secondary or auxiliary status, which can explain the problem
2, electronic wallet. It is issued through the certification center of the network system, including the certified credit card, ID card, etc. Users can use the electronic wallet to complete the operation anytime and anywhere, and the information about personal, credit card and password can be directly transmitted to the bank for payment and settlement
3, smart card. It can make small cash payment directly in the network, and download cash from the bank account through the Internet to ensure the convenience of e-cash. It can also be attached with a password to ensure safe use. In addition, it also has the function of identity identification and government welfare. For example, in schools, the use of smart cards can verify the identity of teachers and students; It can also be used as an electronic currency to pay for meals, ing, laundry and even as a dormitory key. In the United States, it is estimated that 80% of financial transactions are electronic payments
4, electronic bill. Bills include bills of exchange, promissory notes and cheques. Electronic bills are mainly electronic checks. As early as 1995, some big banks and computer companies in the United States jointly developed and publicly demonstrated the electronic check trading system using the Internet, and predicted that "this system may cause a revolution in banking transactions". Singapore has also developed the first electronic check system in Asia in recent years. In China, because of the restriction of bill law in 1996, electronic bill is still blank. However, the author is convinced that with the establishment of China Financial Certification Center and the determination of the legal status of digital signature in electronic payment, coupled with the development of network technology and the strengthening of practical needs, electronic bill will become an important means of payment in the future
5, e-bank account. E-banking provides information inquiry, currency payment, savings business, settlement, online investment, financial management and other services for enterprises or indivials. Among them, 1
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