With the Internet With the rapid development of information technology, the use of computers to commit crimes is becoming more and more complicated. Especially in the case of using computers to steal virtual property, actors often illegally invade other people’s computers by implanting “trojan” programs and remote control. The system and network trading platform take the virtual property of other people’s virtual currency and game equipment on the network as their own, which seriously damages the social management order and the property interests of others. However, how to punish and punish the behavior is a crime that constitutes theft, or the crime of destroying the computer information system, or the illegal acquisition of computer information system data. There is controversy in judicial practice. The author believes that the nature of using computer technology to steal the virtual property of others should be grasped from four aspects.
Clarifying the Legal Attributes of Virtual Property
At present, the controversy over the use of computer technology to steal other people’s virtual property behaviors is mainly focused on whether the virtual property belongs to the property protected by criminal law. Can it be the object of the crime of theft and other crimes. The object of theft is the ownership of public and private property. If the virtual property is not protected by criminal law, it cannot constitute theft. It may only constitute a computer crime. The crime of destroying computer information system and illegally obtaining computer information system data is a crime that hinders social management order. The main object of infringement is the security of computer information system. Therefore, the judgment of the legal attributes of virtual property becomes the key to distinguishing such crimes.
Virtual property generally refers to all kinds of valuable data and information that must exist depending on the computer internet. However, there are different opinions on the scope of virtual property. The author believes that whether the virtual property can become a property protected by criminal law can become a criminal object of a wealthy case, and it cannot be generalized to analyze different virtual assets.
One is a virtual object, also called virtual tangible property, which is a simulation of tangible things in the real environment, such as characters and equipment in online games. Currently, such virtual objects are included in the criminal law. The conditions for protection are not yet mature.
Second is the identity authentication information class, that is, the account registered by the user in the network service provider, such as the communication account represented by WeChat, the social network account represented by Weibo. The identity authentication information has been classified into the computer information system data for protection, and should not be recognized as property in the sense of criminal law.
Three are virtual space classes, such as personal homepage space, domain names, web pages, and so on. The virtual space has more personal attributes, and the right holder can exclude other people’s invasion of personal space based on real-name authentication. If you illegally enter another person’s personal virtual space for data deletion or modification, you can be identified as a computer crime to protect, and such virtual property should not be identified as property in the sense of criminal law.
Four is a virtual currency class. As a medium of exchange in the online world, virtual currency is a special type of virtual object, such as QQ of Tencent and Baidu of Baidu. Such virtual property can be identified as property in the sense of criminal law. Because the general virtual currency is purchased by the user in legal tender, its value is stable, can be legally traded, and has real transaction value. However, the general game currency of a certain online game is not a virtual currency in the legal sense, and does not have a value-added service payment value, and should not be protected as a property in the sense of criminal law.
Therefore, whether virtual property can be protected by criminal law lies in its relevance to the lives of ordinary people, and whether there is an inherent and spontaneous conversion and trading mechanism with real property in reality. The easier it is to measure the value of virtual property, the easier it is to realize virtual property, and the higher its recognition as property. At present, virtual currency satisfies the conditions of property in the sense of criminal law and can be the criminal object of theft. Virtual properties such as virtual objects, identity authentication information, virtual space, and game currency are not currently considered as the object of theft. The use of computer technology to steal such virtual property should be considered as a computer crime.
At the same time, the crime of theft and computer crimes should be convicted of theft.
If the virtual property stolen by the perpetrator belongs to the property protected by criminal law, and the means of destroying the computer system is completed. And its behavior is consistent with the composition of theft and computer crimes, how should it be convicted and punished? In judicial practice, there is a view that the perpetrators have achieved the purpose of stealing the property of others by destroying the means of computer information systems. The purpose of the act should be to absorb the means of conduct and be considered as theft. However, according to the principle of criminal law, if there is a relationship between the behavior of the means and the purpose of the act, it should be punished “from a serious crime”. In this case, it should be punished according to the crime of destroying the computer information system. In this regard, the author believes that at the same time constitutes theft and computer crimes should be convicted and punished according to the provisions of Article 287 of the Criminal Law on the use of computers to carry out relevant crimes. Article 287 of the Criminal Law stipulates that “the use of computers to carry out financial fraud, theft, corruption, misappropriation of public funds, theft of state secrets or other crimes shall be convicted and punished in accordance with the relevant provisions of this Law.” The term “relevant regulations” here refers to penalties for criminal offences related to financial fraud, theft crimes, corruption crimes, misappropriation of public funds, illegal acquisition of state secrets, and other crimes. It is not a conviction for computer crimes in this section. Punishment. If the perpetrator uses a computer to commit a theft crime, he shall be convicted and punished for theft according to the provisions of Article 264 of the Criminal Law. Because from the legislative intent, the criminal law has made this special provision for the use of computer crimes. Because in judicial practice, it is rare for the perpetrator to destroy the computer system simply by retaliation or venting anger. More is to destroy computer information. The system is used to achieve other purposes such as stealing property, and thus it is easy to occur at the same time to violate different crimes. Under this circumstance, for the time being, whether the act is implicated, absorbed or imagined, the criminal law has clearly stipulated that the crime should be based on the purpose of the conviction.
Correct application of the crime of destroying computer information system and illegal access to computer information system data
Influencing the normal operation of computer systems is the proper meaning of the crime of destroying computer information systems. If the virtual property stolen by the perpetrator using the computer is not a property protected by criminal law, it may constitute a crime of destroying the computer information system or illegally obtaining computer information system data. How do the two crimes be distinguished? In judicial practice, the deletion, modification, and addition of data and applications stored, processed, or transmitted in a computer system are not required to be affected by the provisions of Section 2 of the Criminal Code’s Crime of Destroying Computer Information Systems. The normal operation of the computer system. The provisions of Article 285, paragraph 2 of the Criminal Law on the illegal acquisition of computer information system data are intrusive into computer systems or other technical means to obtain data stored, processed or transmitted in the computer information system, and the circumstances are serious. The deletion, modification, and addition of computer data and applications are themselves an act of illegally acquiring computer information system data. Therefore, the crime of determining the crime of destroying computer information system or illegally obtaining computer information system data is also controversial in judicial practice.
According to Article 286 of the Criminal Law, there are 3 crimes against computer information systems. Among them, paragraphs 1 and 3 require that the normal operation of the computer system constitutes the crime, and the second paragraph It does not require the normal operation of the computer system itself. Does it mean that as long as the computer information system data and applications are deleted, modified, and added, even if the computer system is not functioning properly, it constitutes this crime. The author believes that from the legislative purpose of the criminal law, the interpretation of the system and the consistency of crimes and punishments, the second paragraph of this article also requires a certain impact on the computer system to constitute this crime. Because affecting the normal operation of the computer system is the proper meaning of the crime of destroying the computer information system. Otherwise, under the second paragraph of Article 286 of the Criminal Law, it will be indistinguishable from the crime of illegally acquiring computer information system data. Of course, the crime of destroying computer information systems also requires the use of destructive means, and whether it is a destructive means, it is generally necessary to conduct judicial appraisal through professional institutions.
The conviction of infringement of virtual property should be consistent with the principle of adaptation to crimes and punishments.
At present, the criminal law does not clearly define the legal attributes of virtual property. Virtual property generally exists in online games. A considerable number of young people are often the main players and traders of online games. They lack sufficient understanding of the social harmfulness of using computer network technology to steal virtual property. The punishment for such criminals should be punishable. Penalties are quite different and cannot be “too bad.” However, if the criminal perpetrator invades the computer system through various viruses, Trojans, malicious programs, etc., causing serious social harm, the punishment cannot be “lost too wide”, and must conform to the principle of consistent crimes and punishments, so that the perpetrator The crimes committed are consistent with the criminal responsibility assumed. For those sentencing situations such as surrender and meritorious service, it is necessary to fully consider the scope of the law within the scope prescribed by law. In particular, for the crime of destroying the computer information system, if the amount of the illegal income or the amount of the loss is inconsistent with the consequences, the socially harmful difference between the virtual property crime and the actual property crime should also be considered, and the punishment should be lightly punished within the scope of the sentence. Fully demonstrate the organic unity of the political, legal and social effects of law enforcement cases.
(Author: Shanghai Branch of the People’s Procuratorate)