Supreme Court Viewpoint: Is Bitcoin a Virtual Currency? Can it become the target of theft and fraud?

Published by the People's Court Press in 2014, the book "Research on Judicial Practice of Cybercrime and Related Judicial Interpretation and Understanding and Application" (hereinafter referred to as "the book") edited by the Third Criminal Division of the Supreme People's Court once discussed Bitcoin. Whether it is property in the sense of criminal law has been clearly stated.

As the blockchain encrypted assets represented by Bitcoin come into people's field of vision, its controversy has also shown a growing trend year after year. In addition to our chain law team finding more and more related cases on the Judgment Documents Network in the process of sorting out the "chain law case library", more and more WeChat backstage messages, telephone consultations, etc., are also involved in transactions and transactions due to encrypted assets. investment disputes.

Recently, when we were dealing with a case involving bitcoin theft, we consulted the Supreme People's Court's book "Research on Judicial Practice of Cybercrime and Understanding and Application of Related Judicial Interpretations" and found relevant expressions in it.

Judicial interpretation is one of the main basis for the people's courts to accurately apply the law and try cases. Generally, after the judicial interpretation is promulgated, the business department of the Supreme People's Court will write related books on the interpretation and application of the judicial interpretation.

This series of books is the functional departments of the Supreme People's Court to explain the content of judicial interpretations in related fields one by one, and from the perspective of judicial practice, it elaborates the content of the articles in detail.

Although the book was published in 2014, what is virtual property? How to characterize the theft of virtual property? Issues such as how to determine the value of virtual property are clearly stated.

Of course, is Bitcoin a virtual property? If yes, what kind of virtual property? Is the theft of Bitcoin a crime of theft? What is the reason? These issues that everyone is more concerned about are also explained in detail.

secondary title

What is virtual property and how is virtual property classified?

It is generally believed that virtual property refers to all kinds of valuable data and information that must rely on computer Internet.

Virtual property can be divided into narrow sense and broad sense.

Virtual property in a narrow sense refers to game currency, equipment, pets, character levels and character skills in online games;

Virtual property in a broad sense also includes network identity authentication information (such as instant messaging accounts, social network accounts), personal webpage space, email addresses, etc.

Virtual property in a broad sense can be roughly divided into four categories:

1. Virtual objects, also known as virtual tangible property, are simulations of tangible things in the real environment, such as characters, equipment, pets, etc. in online games;

2. Virtual currencies can be classified as virtual objects, but currency is a general equivalent, which is different from ordinary tangible objects. Virtual currency is a general equivalent in the online world. Common such virtual currencies include Tencent’s Q Coins, Shanda Coupons, etc.;

3. Identity authentication information, that is, the account registered by the user with the network service provider, which is the identity carrier for enjoying network services, such as instant messaging account represented by QQ number, WeChat, etc., social networking account represented by Facebook, Weibo, etc. Media account, bank, third-party payment account, e-mail account, etc.;

4. Virtual space category, such as personal homepage space, domain name, web page, etc.

secondary title

What is the legal nature of virtual property?

Discussions on the legal attributes of virtual property in my country's academic and practical circles have emerged with the increasing frequency of cases of theft of virtual property.

Before the "Criminal Law Amendment (VII)" was promulgated, it reached a peak of controversy.

Because, before the "Criminal Law Amendment (VII)" only provided for the crime of illegal intrusion into computer information systems and the crime of destroying computer systems. The act of stealing virtual property is difficult to be classified as a computer crime, because the crime of illegal intrusion into computer information systems regulates the behavior of intrusion into computer information systems in the fields of state affairs, national defense construction, and cutting-edge science and technology.

The punishment for the crime of destroying computer systems is the act of destroying the functions of computer information systems or the data and applications stored, processed or transmitted in computer information systems. The theft of virtual property cannot be interpreted as the destruction of computer information system data.

If the criminal law is used to protect virtual property, the feasible way is to consider the crime of theft according to the provisions of Article 287 of the Criminal Law. This involves the issue of whether virtual property is property.

The "Criminal Law Amendment (VII)" added the crime of illegally obtaining computer information system data. Of course, the means of theft can be classified as illegally obtained, but the question of whether virtual property is property still exists.

Virtual property is a new type of property in terms of legal attributes.

Whether virtual property is an electromagnetic record (or computer information system data) or property in terms of legal attributes is the key to how to characterize the theft of virtual property.

If it is only used as an electromagnetic record, it only needs to be protected by the relevant regulations on the protection of computer system data, but if it is regarded as property, it should be included in the crime of property infringement for regulation.

Property can be divided into tangible property and intangible property.

The former includes movable and immovable property such as cars, clothes, and houses. The latter such as intellectual property rights.

As property, it generally has the following characteristics:

1. It has economic value. Economic value is manifested as being able to meet certain needs of people and has utility. This is the most basic attribute of property.

2. It has a certain scarcity. Sunshine and air are necessary conditions for human survival, but they are a kind of universal existence without scarcity, so they are not property.

3. Disposable. The sun and the moon cannot be controlled by people, so they are not property.

4. Have legality. Although drugs and guns have the above-mentioned characteristics, personal possession is prohibited in our country because they do not belong to property in the legal sense. (Chinese laws do not prohibit individuals from holding encrypted digital assets based on blockchains such as Bitcoin and Ethereum. Based on the principle of "legal if not prohibited by law" in private law, personal ownership of encrypted digital assets is legal.)

It is obvious that virtual property has the above-mentioned characteristics and is property with legal significance.

In view of this, virtual property should be protected through civil law and criminal law.

There are different theoretical views on what kind of property rights virtual property should be classified into. There are mainly three different views: the theory of real rights, the theory of creditor's rights, and the theory of intellectual property rights.

The theory of real rights believes that as long as it has the possibility of legal exclusive control or management and independent economics, it can be recognized as a legal property, and the basic attributes between network virtual property and civil law are the same. The network virtual property should be regarded as a special thing, and the relevant provisions of the existing laws on property rights should be applied.

secondary title

Defects of property rights theory

According to the spirit of the property law, the object of ownership is limited to physical objects in principle, and there is no clear legal basis for players to enjoy ownership of virtual property in real rights. The real right is the exclusive property right for the obligee to directly control the property and enjoy its benefits, and the real right owner does not need the assistance of others to realize his will on the property. As for virtual property, right holders must rely on the active cooperation of game operators to complete the process smoothly.

The change of property rights has the property of publicity, the publicity method of movable property is possession, and the publicity method of real property is registration, while virtual property does not have the publicity of property rights.

However, taking bitcoin as an example, the owner of bitcoin does not need the assistance of others in principle to exercise his rights. So is the change of Bitcoin public? Bitcoin transactions are publicized on the entire network, and transaction records can be checked, which can also be considered publicity. This is where Bitcoin differs from the "virtual property" here.

In addition, both the theory of creditor's rights and the theory of intellectual property rights have certain flaws.

The book also mentions that the theory of real rights, claims and intellectual property rights all illustrate certain characteristics of virtual property from different aspects, and shows that virtual property does have some legal characteristics similar to property rights, claims and intellectual property rights. , but none of them can satisfactorily explain the legal ownership of virtual property. Virtual property should belong to a new type of property in essence, and it is a new property right.

The team of chain lawyers believes that the encrypted digital currency represented by Bitcoin and Ethereum is not only different from the previous types of property, but also different from the "virtual property" mentioned above. It is a brand-new property right.

In the past cases of theft of virtual property, due to the lack of clarity on virtual property in the criminal law, courts around the world have great differences in the application of laws in cases of theft of virtual property, as follows:

1. To characterize as theft. For example, a case of theft of equipment from "Fantasy Westward Journey" was heard in Zibo City, Shandong Province. For example, a case of theft of 5173 account in Fengqiu County, Henan Province. The survey found that the cases of theft of virtual property in Beijing are basically classified as the crime of theft. (The current case involving the theft of bitcoins has been determined by the Beijing court as a crime of illegally obtaining computer information system data)

2. Determining the crime as a crime of infringing on freedom of communication. For example, in a case of theft of QQ numbers in Nanshan District, Shenzhen, Guangdong, it believed that QQ numbers were not objects of property protection in the sense of the criminal law and did not constitute the crime of theft. However, QQ numbers belong to the code of network communication tools, and stealing QQ numbers is a violation of the freedom of communication of others.

3. Determining the nature of the crime of destroying computer information systems. For example, in Yunhe County, Zhejiang Province in 2007, there was a "Fantasy Westward Journey" account hacking case.

4. Determine the nature of the crime of illegally obtaining computer information system data. This charge is a new charge added to the Criminal Law Amendment (Seven) in 2009. For example, in 2009, the People's Court of Yunhe County, Zhejiang Province characterized the act of stealing game props in other people's game accounts for the crime of illegally obtaining computer information system data.

The Supreme People's Court held that: the challenge faced by the crime of illegally obtaining computer information system data is:

First of all, treating virtual property as only computer system data denies the property attribute of virtual property, which is suspected of simplifying complex issues. Not recognizing the property attribute of virtual property, as mentioned above, will make the protection of civil law lack of legal basis.

Second, criminals may be connived.

In judicial practice, what is really controversial is the qualitative issue of the theft of virtual currency and virtual objects.

The existing judgments may follow the following point of view: on the premise that there is no clear regulation on virtual property in legislation, the act of stealing virtual property should be defined as the crime of illegally obtaining computer information system data.

However, this approach avoids the property problem of virtual property, and it is difficult to say that it conforms to the original intention of the legislation.

The legislative intent of the crime of illegally obtaining computer information system data:

At present, illegal intrusion into other people's computer systems or the use of other technologies to intrude into computer systems is rampant, and one of the main purposes of illegal intrusion is to illegally steal data stored, processed and transmitted by other people's computer systems, and online banking information is the focus of the theft. , including personal online banking accounts, passwords, etc. However, a considerable number of people who steal online bank accounts often do not personally carry out the act of stealing funds, but provide the stolen information to others online.

These behaviors have seriously threatened the security of citizens' financial property, and it is difficult to investigate the persons who steal and provide information as accomplices in the crime of theft. Because, the network supervision department proposes to illegally obtain the data stored, processed and transmitted in the computer information system as a crime.

It can be seen from the legislative background of this crime that the establishment of this crime is to further tighten the legal network, so that there is a legal basis for the investigation of those who wantonly steal account information but do not participate in the subsequent theft of property. It cannot and does not intend to replace the crime of theft. The specification of virtual property.

In addition, the objects of the two violations and criminal objects are also different, which we have also mentioned in previous articles.

In fact, on the issue of punishing the theft of virtual property, the crime of illegally obtaining computer information system data is a supplement to the crime of theft, and it solves the qualitative problem that theft is not suitable as a property behavior in the sense of criminal law.

The main reasons why virtual currency can be regarded as property in the sense of criminal law are as follows:

1. The acquisition of virtual currency is paid.

2. The value of virtual currency is stable;

3. Virtual currency can be legally traded and has real exchange value.

Protecting virtual currency as property in the criminal law does not violate the principle of legally prescribed crimes.

Although the criminal law does not clearly stipulate that virtual property is owned by individual citizens, property is an open concept in law, and its connotation and extension will change with the changes of the times. For example, property in the planned economy era does not include stocks, equity, etc. Therefore, while the criminal law adopts an enumeration method to define personal property, there is also a bottom-up provision, which includes "other property".

As a brand-new form of property, virtual property can and should be included in "other property" for protection before it is regulated separately by law.

In judicial practice, the following issues should be paid attention to when using virtual currency as the criminal object of theft:

1. General game currency is not a virtual currency in the legal sense. Game coins used in online games to improve the fun of the game, enhance the sense of reality of the game, and have no payment value for value-added services, etc., should not be protected as property, such as Happy Beans in the QQ Fight the Landlord game.

2. The scope of virtual currency does not only include virtual exchange tools in online games. At present, with the integration of the Internet and social and economic life, new virtual currencies continue to emerge. Some virtual currencies have nothing to do with online games at all, but become an alternative payment tool, such as Alipay’s Jifenbao, and the currently popular Bitcoin coins etc. All belong to the category of virtual currency and can be protected as criminal property.

3. The act of hacking into the background of an online game operator to modify data and increase virtual currency in an account should not be simply defined as the crime of theft. Because the holding of virtual currency here is zero-cost, there is no transaction or consumption, the operator will suffer losses, and the operator can restore the data to the original state after discovery.