Award-winning paper, "Exploration of the Virtual Property Protection System"-won the second prize of Shandong lawyer's excellent paper.

Content Summary

Article 127 of the General Principles of Civil Law provides for virtual property for the first time, and virtual property has the characteristics of value, non-reality, tradability, space-time specificity, and domnability. About the object nature of virtual property is mainly divided into property rights, claims, intellectual property rights, because property rights have the effect of the world, no limitation, recovery and effectiveness and comprehensive protection and other characteristics, so the adoption of property rights to protect virtual property.

Key words:

Virtual property, property rights, claims.

1. Virtual Property Overview

Virtual property refers to products that exist in the server in the form of data and are represented in cyberspace in an avatar. Virtual property in a broad sense refers to property that exists in the Internet space in a virtual form, including account numbers, E-mail, virtual currency, game items, etc.; virtual property in a narrow sense refers only to virtual property with a specific transaction value, mainly online game players, in the process of online games, it takes time or money to obtain a virtual product that can be exchanged between players and players, between players and service providers, and between players and third parties to obtain real benefits. [1] This paper discusses virtual property in the narrow sense, I .e., virtual property that exists in online games.

The dispute over virtual property of online games has always been at the forefront of virtual property disputes, especially after the dispute over the entertainment service contract between Li Hongchen and Beijing Arctic Ice Technology Development Co., Ltd. (hereinafter referred to as "polar ice company") in 2003, the legal nature of virtual property and its protection have aroused widespread concern. In the Li Hongchen case, the court did not determine the nature of the virtual property, but only that the service provider Jibing Company violated its protection obligations as a service provider, and then ruled that it took technical means to restore the plaintiff's stolen online game equipment. [2] In fact, the "guarantee obligation" can be regarded as the contractual obligation that the service provider should perform as a party to the service agreement, or it can be regarded as the security obligation of the service provider as the manager of the online game server to the player's virtual property. This is controversial.

Virtual property has the following characteristics: First, value, virtual property as a product that exists in the virtual space, is spent by the player to have a certain amount of time, or invest a certain amount of money to obtain. In the Li Hongchen case, the Chaoyang District Court determined that although the game equipment was invisible, the players paid for it and took time, which showed that it had a certain value. If the player invests energy, in which to obtain the spiritual experience of joy and sorrow, indicating the use value of virtual property, the increasingly popular virtual property transactions, then reflects its exchange value, the use of value and exchange value together support the value of virtual property. [3] Value is also one of the reasons why virtual property should be protected by law. Second, it is not realistic. Virtual property does not actually exist in real life, but is stored in the operator's server in the form of data, and is displayed in the game through these data, bringing corresponding virtual benefits to players. Third, tradability. Virtual property can be traded in games or reality because of its value, including: transactions between players and operators, that is, selling equipment back to operators in exchange for game currency or cash; Transactions between players, that is, players barter or exchange for real or virtual currency for reasonable allocation of resources; Transactions between players and third-party platforms or agents, that is, a third-party platform or agent buys and sells virtual property as a middleman for the purpose of profit. However, in order to prevent the impact of virtual currency on real finance, according to the notice on the management of virtual currency transactions in online games jointly issued by the Ministry of culture and the Ministry of Commerce in 2009, the same enterprise can not operate the issuance and transaction of virtual currency at the same time, and virtual currency can not be used to purchase real objects. As a result, service providers can not exchange virtual currency for RMB, At the same time, virtual currency can not buy real life items. [4] Fourth, time and space specificity, virtual property can only exist during the service provider's operating period, if the service provider stops operating or terminates the service, then the virtual property will lose the basis of existence, and then eliminate, at this time whether the right holder can claim responsibility to the service provider and how to claim responsibility is controversial. Virtual property in space, only exists in the fixed server, with the specificity of space. Fifth, dominance, the player as the right holder, can control the virtual property, which is embodied in the exclusion of other players, the exclusion of the operator's obstruction of use, and the disposition of the virtual property. [5]

Provisions of Article 127 of the General Provisions of 2. Civil Law

Article 127 of the General principles of the the People's Republic of China Civil Law (hereinafter referred to as the General principles of the Civil Law), which was implemented in October 2017, provides for the virtual in the form of law for the first time. Although the General Principles of Civil Law do not directly specify the nature of the rights of virtual property, at least the following conclusions can be drawn: First, virtual property is clearly defined as the object of civil rights. From the structure of the General Principles of Civil Law, the provisions of Article 127 on virtual property are placed in Chapter 5, "Civil Rights". This chapter includes civil rights, the object of civil rights and the rules of change of civil rights. Articles 123 to 126 stipulate the object of civil rights. Article 128 later stipulates the special protection of civil rights. Article 127 does not involve the special protection of civil rights, according to the system interpretation, article 127 should also be a provision on the object of civil rights. Second, virtual property is not the object of the claim, according to article 118, paragraph 2, the object of the claim can only be the act of the obligor, virtual property is not an act, so it is not included in the object of the claim.

Before the finalization of article 127, there were two provisions on the nature of the real right of virtual property. For the first time, article 102 of the first draft on may 27, 2015, "if the law stipulates that specific rights or network virtual property are the object of real rights, it shall be in accordance with its provisions." It can be seen from this article that the first draft of the review clearly identified virtual property as the object of property rights, which is a great progress. On September 13, 2016, Article 102 was amended, "If civil entities have provisions on the protection of income, savings, houses, daily necessities, production tools, investment, and online virtual property in accordance with the law, they shall be in accordance with their provisions". It can be found that the revised article 102, although the result of the compromise of experts from different viewpoints, juxtaposes virtual property with the object of property rights such as "savings, houses, daily necessities, and production tools", and it can also be seen that virtual property has property rights. nature. In the draft submitted for review on October 39, 2016, after another dispute and compromise, the provisions of article 127 were finally determined, with a more obscure expression, but in the three revised drafts, the legislative tendency of the real right nature of virtual property is quite obvious. [6]

The Nature of 3. Virtual Property

Virtual property, "virtual" is its logical starting point. It has the meaning of simulating reality and being real. It is used to describe virtual products related to computers and the Internet. Technically speaking, in cyberspace, through pre-set programming language, Imitate and create things in real life. [7] The focus is on "property", which, according to the definition of "property" in Chinese jurisprudence, generally refers to the object of rights, I .e., things in the de facto sense, not the noumenon of rights, and the concept corresponding to the noumenon of rights should be "property rights", such as property rights, claims, intellectual property rights, equity and inheritance rights. The nature of virtual property is actually to discuss what kind of right virtual property right is and what kind of right virtual property is.

(I) intellectual property said

Users invest a lot of energy and time in the game, and then obtain virtual property. Therefore, virtual property reflects the intellectual creation of players and belongs to the object of intellectual property. The use of intellectual property theory has its advantages. On the one hand, the object of intellectual property is the result of creative intellectual activities. It is a structured and non-textured object, that is, a non-physical object. The object of virtual property, such as the virtual object in the game, is also a non-physical object with the characteristics of invisibility. The two are compatible in this aspect;[8] On the other hand, intellectual property is a kind of dominant right, exclusive, exclusive, virtual property as the object of intellectual property rights, can protect the user's control and domination of virtual property, excluding service providers, other players or any third party improper obstruction.

There are also obvious shortcomings in the intellectual property theory of the object of virtual property. First, online games as a whole are developed by service providers. There is no doubt that service providers have copyright in online games. On the contrary, game users have no creative development of virtual property. Only under the rules of the game, the use and upgrading of virtual property can not reflect the originality of intellectual property rights. Second, the property rights in intellectual property rights are protected by law for a time limit, According to the relevant laws and regulations of intellectual property rights, 20 years of invention protection, 10 years of design and utility model protection, 50 years of work protection, and 10 years of trademark protection, which can be renewed, are all legal periods, while the duration of virtual property is stipulated in the service agreement signed by the user and the service provider, and is also affected by the termination of game operation by the service provider; third, in addition to trademark rights, intellectual property rights have the dual nature of personal and property, virtual property does not reflect the characteristics of personal nature beyond the nature of property;[9] Fourth, the object and carrier of intellectual property rights are not identical. For example, the object of copyright is creative text expression, and the carrier can be any book, Magazine, there is no identity between the two, and the object and carrier of virtual property are virtual property, an intangible product.

(II) claims say

Virtual property arises from the service agreement signed between the service provider and the user, and is regarded as the object of the credit and debt relationship between the online game service and the game player. The player enjoys the service provided by the service provider in accordance with the provisions of the service agreement. The advantage of creditor's rights is that the use and disposition of virtual property by game players requires service providers to provide server equipment and technical support to cooperate, which is in line with the relativity of creditor's rights.

However, the defects of creditor's rights are also obvious. First, from the object of debt, as mentioned above, according to the second paragraph of Article 118 of the General Principles of Civil Law, the object of creditor's rights is behavior, and virtual property does not belong to the category of behavior and does not meet the requirements of the object of creditor's rights. Second, from the control of virtual property, service agreement is the cause of virtual property, not the virtual property itself. Players sign game service agreement with network service providers, in order to obtain virtual property, and then control and dominate the virtual property, and do not completely rely on the services provided by the service provider; thirdly, from the protection of virtual property, the infringement of virtual property, except for the game service provider's improper obstruction and deletion of virtual property, most of them come from other players or third parties other than the game, in order to seek illegitimate interests, hinder and steal the player's virtual property, taking claims, the protection of virtual property stops at claiming liability for breach of contract to the network service provider, and cannot claim liability to a third party, because the third party does not infringe on the claim at all, and the so-called third party infringing on the claim is only an obstacle to the personal freedom of the creditor to exercise the claim, so at most it is only an obstacle to the claim. [10]

(III) property rights said

Virtual property exists as a kind of property in virtual space, and the player can control it exclusively and exclusively, so it is inferred that virtual property is a real right. The real right characteristics of virtual property are reflected in the following aspects: first, dominance, players gain control over virtual property after spending time or money, and can use, obtain relevant benefits or dispose of them; Second, exclusivity, virtual property is under the control of players, and players have the right to prevent and exclude obstacles from game service providers or even third parties, not limited to counterpart game service providers who have service agreements. Third, disposability allows players to transfer virtual property at their own discretion without the consent of the service provider.

However, there are also views that question the real right characteristics of virtual property. First of all, virtual property is intangible, there is no real form of expression, does not conform to the traditional concept of things, but the meaning of things as a legal concept has been changing. From Justinian's "Ladder of Law", we can know that in the early Roman law, the concept of object includes both physical and non-physical objects, but the non-physical objects here have different meanings from the current non-physical objects, mainly referring to the relationship of legal fiction, including the right of inheritance, the right of usufruct, etc., which cannot be felt by human facial features, the definition of things in the French Civil Code also largely follows the concept of Roman law. The German Civil Code, on the other hand, makes a different provision, defining an object as the object of a right and as a physical object. With the development of economy and technology, the concept of things is constantly expanding, no longer confined to the shape, electricity, water and other intangible objects are also included in the scope of the object of property rights [7]. If the second industrial revolution included electricity in the category of things in the legal sense, then the information technology revolution included virtual property in the collection of objects of property rights. Virtual property has the specificity of time and space, can be controlled by the player, and has the use and economic value, enough to be included in the object of the category. [11] Secondly, in response to the question of user dominance, virtual property is stored in the service provider's server, the user's control of the virtual property is not directly controlled, the need to request technical assistance from the service provider, thus denying the virtual property has the object nature of property rights. The legal understanding of domination is also a process of change with the development of the times, from the actual control of things at the beginning to indirect control, and finally through the connection with the rights of things, the ultimate control of things can be realized. Is considered to be the embodiment of dominance. Game users through the use of account passwords, to achieve the direct possession of virtual property, after offline, the direct possession of virtual property transferred to the service provider, their own based on indirect possession to continue to control the virtual property. Every time a game user uses or disposes of virtual property, although the service provider is required to provide assistance, this is only an objective condition arising from the technical characteristics of the virtual property, and it is the game user himself who ultimately makes the decision. [12] Finally, virtual property has the characteristics of permanence during its existence and does not conform to property rights. Virtual property will be eliminated by the termination of the operation of the game service provider, according to which the opposition to virtual property is a property right. In fact, it is precisely because the virtual property belongs to the real right, when the game service provider terminates the operation, resulting in the loss of the virtual property, the service provider should be responsible for damages. At present, compared with game players, service providers are in a more favorable position in terms of technology and capital. Taking property rights is more able to protect the rights of game players as consumers.

Real Right Protection of 4. Virtual Property

The use of claims or property rights is undoubtedly the focus of controversy, the merits of the doctrine, should be examined from the practical value, that is, to explore which doctrine is more conducive to the protection of virtual property. As a business, service providers have strong corporate capital in terms of funds. Technically, they control the game operation platform and occupy a dominant position. As consumers, game players have a weak position. The legal system should be tilted to weak consumers and advocate creditor's rights. The view is inevitably suspected of safeguarding the interests of large Internet companies such as game service providers. Giving virtual property the status of the object of property rights can better protect the interests of players.

Effect of (I) on the World

The infringer of the online game may be the game service provider, at this time the creditor's rights can play a role, that is, the player to the service provider to claim liability for breach of contract. However, the value of virtual property and the operator status of online game service providers determine that the infringement of virtual property is not only online game service providers, but also from other players or third parties outside the game. These individuals steal players' virtual property through technical means for the purpose of illegal possession or monopoly for profit, which is the main infringement group and limited to the relativity of creditor's rights, players can only claim breach of contract to the opposite party, I .e. the online game service provider, and there is nothing they can do about it against infringers from outside the service provider. Taking the object of virtual property right can avoid the dilemma of not being able to claim rights to a third party, the real right has the effect of the world, not only to the game service provider, but also directly to other game players, the third party outside the game, so as to better protect the virtual property rights.

(II) comprehensive protection

Identified virtual property as the object of real right can protect virtual property more comprehensively. Whether it is the right to return the right of ownership, or the elimination of dangerous claims, the exclusion of the right to hinder the exercise of the right to claim, such as the right to claim, are not based on the infringer's fault. [13] That is, without intent or negligence, the infringer may also be requested to compensate for the loss in order to maximize the protection of virtual property rights and interests. Because in the process of maintaining the system by online game service providers, there are some factors that are beyond the control of current technology. These factors do not constitute the source of fault of the service provider, but they cause damage to the player's virtual property. If you take the claim, Players will find it difficult to claim damages.

(III) without aging limit

Under the theory of real right, there is no time limit for players to claim rights for the infringement or obstruction of virtual property. As long as the infringement or obstruction still exists, players can claim rights to the infringer to restore the complete state of virtual property rights. According to the creditor's rights, because the player claims the liability for breach of contract, there is a limitation of limitation of action. According to the latest provisions of the general principles of civil law, the limitation of action is three years. If the player claims the right after the expiration of the time limit, the player will lose the right to win the case.

In terms of the time specificity of virtual property, the theory of property rights also plays an important role. If the game service provider terminates the operation of the online game without the agreement in the service agreement, the virtual property will be lost and the ownership of the player will be infringed. In addition to claiming liability for damages from the game service provider, the player may also require the service provider to continue to operate according to the agreement and restore the ownership of the player's virtual property. Under the claim, the player can only claim liability for breach of contract to the service provider.

(IV) pursuit effect

The player's virtual property is stolen and the virtual property is subsequently transferred one or more times, at which point the player's ability to claim rights against the final assignee of the virtual property depends on the adoption of the property right doctrine. If it is determined that the virtual property is the object of the real right, the virtual property is stolen, no matter how many times it changes hands, whether the transferee is in good faith, can not have the effect of good faith acquisition, the player can directly to the final transferee to claim the right to return the original claim, restore the ownership of the virtual property. This is of great help in combating virtual property crimes, and potential buyers will be afraid to purchase virtual property from improper means to curb crimes against virtual property from the demand side.

References

[1] Chen Xuqin, Gobiquan: "On the Legal Attribute of Network Virtual Property", Hangzhou: Zhejiang Journal, 2004 05.

[2] "Plaintiff Li Hongchen and Defendant Beijing Jibing Technology Development Co., Ltd. Dispute over Entertainment Service Contract", Civil Judgment of Chaoyang District People's Court of Beijing,(2003) Chao Min Chu Zi No. 17848

[3] Lin Xuxia, Zhang Dongmei: "On the Legal Attribute of Virtual Property Rights in Online Games", Beijing: Chinese Law, No. 2, 2005

[4] Jiang Bo, Research on Judicial Protection of Virtual Property, Beijing: Peking University Press, December 2015

[5] Wang Lei: "Re-insistence on the claim of network virtual property rights-and the systematic position of network virtual property in China's Civil Code", Wuhan: Jianghan Forum, January 2017

[6] Yang Lixin, "The General Principles of Civil Law stipulate the meaning and important value of online virtual property", Shanghai: Oriental Law, No. 03, 2017

[7] Lin Xuxia, "Analysis of Virtual Property-Taking Virtual Tangible Property as the Research Object", Fuzhou: Southeast Academic, No. 6, 2006

[8] He Min, "A New Theory on the Object of Intellectual Property", Beijing: Chinese Law, No. 6, 2014

[9] Liu Huirong, Shang Zhilong: "Analysis of the Legal Nature of Virtual Property Rights", Jinan: Law Forum, 2006, No. 1

[10] Wang Baoyu, "Reflections on the Real Right of Creditor's Rights", Kunming: The Rule of Law and Society, mid-June 2008: 69 pp.

[11] Yang Lixin, Wang Zhonghe, "On the Property Attributes and Basic Rules of Network Virtual Property", Beijing: Journal of the National Prosecutors College, December 2004.

[12] Lin Xuxia, "On the Nature of Virtual Property Rights", Beijing: Chinese Law, 2009, No. 01.

[13] Meng Fanchao, Wu Shoudong: "Comparison of Civil Law Protection Methods of Property Rights and Creditor's Rights", Changchun: Journal of Northeast Normal University (Philosophy and Social Sciences Edition), No. 4, 2003