| With the rapid development of network information technology,we can see our country’s mobile communication is on the way to the 5G era.The development of the Internet has brought new modes of mobile payment and online transactions.Virtual assets such as APP account,virtual currency and game equipment have gradually been integrated into people’s social life.But at the same time,the criminal behavior also gradually spread to the network space.In recent years,the network user’s things be fraud and theft in criminal cases has become more and more.How to protect the network virtual property has become the top priority between theory and practice of criminal law.Due to China’s current laws and regulations of network virtual property is still in the exploratory stage,and civil code only made a show of small regulation for it without further judicial interpretation to determine its legal attribute.How to regulate these behavior has none law reference,leading to judicial dilemma like different result in same crimes and measurement of penalty too light or too heavy.The order of cyberspace needs to be maintained as well as the order of real society.The current research focus need to be updated refer to the legal attributes of virtual property and the nature of theft.The paper is divided into four chapters:The first chapter introduces three typical similar cases with different results which leads to the myth of stealing network virtual property in judicial practice.Secondly,this paper discusses the differences in the qualitative nature of this kind of behavior in the theoretical circle,and analyzes four qualitative approaches: the theory of innocence,the theory of computer crimes,the theory of theft and the theory of creating new charges.The second chapter mainly summarizes the judicial practice of stealing network virtual property from 2006 to 2020 in the form of case perspective.First of all,it mainly introduces the differences of charges,time,region,prosecution & trial and behavior pattern in judicial practice when dealing with such cases,from which it finds the difficult problems of conviction and sentencing in such cases.Then it mainly summarizes the problems such as the lack of unified standards in judicial determination,the insufficient reasoning and the lack of persuasion in judicial practice.Therefore,it is necessary to make careful judgment on the basis of clarifying the legal nature of network virtual property and the mode of stealing behavior.Put forward the way of qualitative analysis according to different behavior mode,in order to protect network virtual property within the framework in criminal law better.The third chapter mainly defines the connotation and attribute of network virtual property.Firstly,the connotation and category of the network virtual property are clarified.This paper holds that the network virtual property is the electronic data which can only exist in the network space and has some kind of value in the form of0/1 code and can be connected with the real world.According to the existing classification,the category of network virtual property is refined: including currency,account and goods.Secondly,it explores its legal attribute and discusses its property attribute characteristics of general property by means of syllogism.At present,the academic community has cognizant of its five right attributes: data,real right and creditor’s right etc.After examining and comparing all viewpoints,it concluded that the right attribute of network virtual property is real right,and it is no body thing.On the basis of summarizing the above theoretical problems,the fourth chapter puts forward some relevant opinions on how to qualitative the behavior of stealing network virtual property.Firstly,the necessary classification of network virtual property is carried out: legal generation(general network virtual property)and illegal addition(theft and brush network virtual property).It is demonstrated that the interpretation of legal generation of network virtual property is that property does not violate the principle of legality of crime and punishment,also does not exceed the expectation of citizens,which is an expanded interpretation allowed by the criminal law.However,the illegally added network virtual property does not exist when it is added,and there is even no data code to reflect its objective existence,so it cannot be interpreted as property in criminal law.Secondly,the qualitative approaches for different types of behaviors are put forward.The perpetrator enters the victim’s account to steal general network virtual property by obtaining the account password and so on,which constitutes the crime of theft.When the doer is assisted by technical means,the act also infringes the legal interests of public security,and the act constitutes the imaginary confluence crime of theft and corresponding computer crimes at the same time.Such characterization can not only complete the evaluation of the crime facts,but also accord with the principle of the consistency of crime and punishment.However,the act of stealing virtual property infringes on the legal interests of network information security of the operating platform,and the subjective and objective aspects of this act should also be the constitutive elements of relevant computer crimes.Which should be defined as the crime of illegally obtaining data of computer information system.Finally,the three typical cases quoted at the beginning of the paper are re-examined according to the above qualitative approach.Based on the case perspective of judicial practice and the careful consideration of relevant theoretical research,this paper draws the following conclusions: network virtual property has both data and property attributes,its legal attribute is real right,and it is no body thing;Stealing network virtual property behavior should in accordance with the network virtual property and stealing behavior model of different qualitative different charges,stealing network virtual property and the use of technical means,unauthorized network virtual property were differently convicted.Such treatment can not only accurately reflect the property attribute of network virtual property but also accurately evaluate violate the legal interests of stealing behavior,in order to realize the punishment of crime. |
