THE INTERLACED APPLICATION OF CRIMINAL LAW AND CRIMINAL PROCEDURE ON THEFT OF VIRTUAL PROPERTY IN THE AGE OF BIG DATA
Yang Jiwen & Fu Yunfei
I. INTRODUCTION
In the era of big data, virtual property exists in the virtual network world and it is represented by electronic or electromagnetic forms. There are many examples in real production and life, such as game equipment, Q currency and so on. According to the current judicial practice, it is more and more common to violate the law and crime of network virtual property, and stealing network virtual property is one of the most common crimes. Virtual property such as Q currency and game equipment can be traded by both parties in the market, thus creating a new legal phenomenon. However, due to the lack of clear legislative provisions, whether this kind of network virtual property can become the criminal object and applicable object of specific crimes of infringement of property crimes in the criminal law classification is controversial in both theoretical and practical circles. This is because applying the relevant law to the online virtual society in the era of big data requires emphasizing that an important principle is 'offline to online'. In other words, when new science and technology comes into being and develops, although it seems to be very safe, can it really bring justice and order to the virtual reality in the network? In so many online transactions, this virtual reality interweaves private behavior with public behavior, legal behavior and criminal behavior. It is difficult for our current criminal law and criminal prosecution to grasp the above points and provide solutions.
II. LITERATURE REVIEW AND THEORETICAL CONTROVERSYA. Current Situation of Domestic ResearchThe current Criminal Law of China does not explicitly include virtual property in the object of criminal law, which leads to some differences in the practice community when dealing with the crime of stealing virtual property. Although there are more and more monographs and papers on this topic, there are disputes on the important issues such as the definition of virtual property, the standards for the application of criminal law, and the clear requirements of the legal punishment of crimes.Firstly, the definition and nature of the virtual property. The first is the property rights. Yang Lixin, a famous scholar, believes that 'network virtual property refers to a new type of digital production that exists in cyberspace that is isolated from reality and can measure its value with existing metrics. Although the network virtual property has different characteristics from the traditional type of property, it is still a special kind of property, and it is regulated when accepting the property law. In the distribution of network virtual time production, it should also be determined that it belongs to specific owners' possession, use, profits and dispositions.' The second is creditor's rights. Some scholars have analyzed the concept and legal characteristics of virtual property and believe that it is necessary to examine the legal relationship of contract law, avoid disputes over property rights, claims and intellectual property rights, and put forward that virtual property rights should be essentially a kind of creditor's rights. Some scholars further believe that the nature of virtual property is a service contract relationship. Although it is represented as a virtual object of the network, it is essentially the right of the player due to the service contract relationship. Others argue that virtual property is an abstraction that is not the object to be protected by intellectual property, nor is it merely a document of contractual claims, but is independent and specific. The third is the new property theory. Researcher Ma Yide believes that network virtual property has value and social interests. It is a new type of property that should be included in the legal system and scope. It belongs to an intermediate type of rights in the civil rights system and should be specially explained in the protection and application of the law.Secondly, the criminal law protection of virtual property. 'Virtual property does not have a reasonable position in the traditional criminal law theory, and crimes involving virtual property have not been legally and reasonably resolved. There are cases of the same nature that have different judgments due to the application of different criminal law norms.' Professor Zhao Bingzhi and others believe that the criminal law protection of network virtual property should be comprehensively managed from the perspective of legislation and judicial affairs, and if necessary, it should not violate the existing legislation and comply with the legal principles of crime and punishment. Through the highest judicial organ to explain the specific application of the law, the criminal law can regulate on the infringement of virtual property. In the article Criminal Law of Network Virtual Property, Xie Wangyuan points out the characteristics of virtual property and the problem of legal evasion, and conducted detailed arguments, but did not analyze the legal problems reflected by this legal evasion from a more comprehensive perspective. In the article Thinking on Virtual Crime in Online Games, Yu Zhigang mainly discusses the interest in the continuation of computer crime research. It stems from the virtual crime caused by the unique virtuality of cyberspace and has certain forward-looking features. Pi Yong's book Comparative Study of Cybercrime, which draws on the advanced criminal law legislation experience of foreign countries, extensively collects relevant legislative materials including civil law system and common law system countries, has certain reference significance. Some scholars believe that because of the communication function and value of network virtual property, theft of these virtual properties cannot be characterized as a crime of infringement of freedom of communication. For example, we know that mobile phones have the function and value of communication. Theft of mobile phones which reaches a certain value and amount should be considered as a crime of theft rather than a crime of infringement of freedom of communication.Thirdly, the judicial application of theft of virtual property. First, it certainly applies to the idea of theft. Professor Liang Genlin believes that virtual property is a valuable and useful property and should be applied to the provisions of Chinese criminal law theft. Professor Zhang Mingkai believes that 'it is reasonable to recognize the illegal acquisition of the virtual property of others as a property offender; Nationals have long known and frequently used the concept of intangible and virtual property. The interpretation of virtual property as criminal property will not infringe on the prediction possibility of nationals and will not violate the principle of legal punishment.' Further, Yu Zhigang and Guo Zhilong believe that from the perspective of the development of cybercrime, whether it is stealing other people's communication lines or stealing accounts, currencies, and passwords on other people's information networks; it is essentially infringing and stealing network services behavior. Second, the view that the negation of virtual property needs the protection of criminal law and does not constitute the crime of theft. Professor Hou Guoyun and others believe that 'protecting virtual property and criminalizing the theft of virtual property will not stop the theft of virtual property, but will backfire, trigger more such cases, and will induce more teenagers and social elites to join the game team. The creation of professional players, the birth of online labor, resulting in a huge waste of talent, will also cause the national financial system to suffer heavy losses, causing inflation.' Third, other points of view. Some scholars believe that the theft of online virtual property is essentially an electronic data theft in the ID of a player participant. The nature of this behavior is an act of illegally invading and stealing internet user information.B. Current Situation of Foreign Legislation and ResearchIn Japan, the main provisions on virtual property crimes and theft of virtual property are articles 161 and 246 of the Japanese Criminal Code. For example, article 246 provides that 'damage to electronic computers used in the business of others or electromagnetic records used by them, or input false information or improper instructions to computers used in the business of others, or by other means, if the electronic computer cannot operate in accordance with the purpose of use to hinder the business of others, it shall be punished for up to 5 years or a fine of up to 1 million yen.' In the US, the Computer Crime Act of 1978 was passed by the Congress, and subsequent States in the US have successively enacted and improved laws on computer crime. In 2009, the US Congress passed the Cyber Security Law, and has issued a series of laws and regulations on regulating cyber information, combating crimes in cyberspace, and strengthening the protection of cyberspace. In the above-mentioned law, it is clearly stipulated that online virtual property is considered as 'movable property' and can be enforced as a legal legacy. The Electronic Theft Prohibition Law even more clearly stipulates that the account numbers of participants in online games are included in the scope of protection of the law. In the UK, the crime of theft under the law clearly defines 'property' as including intangible ownership and other intangible property, so the scope of online virtual property protection has become a confirmed fact. The Computer Misuse Act of 1990 clearly defines the three acts of computer abuse, which has a strong practical significance and reference for the criminal law application of theft of virtual property on the internet. At the same time, it further distinguishes the subjective intention and intention of the strong theft of online virtual property, and details the objective aspects of the online virtual property crime, which will be more conducive to cracking down on cybercrime. In the Netherlands, the Supreme Court issued Criminal Judgement No. BQ9251, which established that theft of virtual property on the internet, could constitute theft. The Supreme Court of the Netherlands held that the specific provisions of the Criminal Code should protect the right to control. However, any intangible items such as virtual property of the obligee can become items protected by the criminal code of theft. In Germany, the Law on the Regulation of Information and Communications, adopted in 1997, provides the legislative protection for network virtual property. On July 3, 2004, the Anti-unfair Competition Act promulgated and implemented in Germany stipulated that the protection of network virtual property should be achieved through the protection of 'electromagnetic records'. However, German criminal law generally does not recognize the value and attributes of 'electromagnetic records' property. The mainstream view of the German criminal law community is that the protection of virtual property on the internet cannot be carried out in accordance with the protection of traditional property, but should be applied to the protection of the relevant legal system of the intangible property law. For example, there are the legal provisions on infringement of trade secrets in article 17 of the Anti-Unfair Competition Act. In South Korea, courts have confirmed that virtual currency has the same value as real currency. In early 2010, the Supreme Court of South Korea made a clear ruling, determining the legal nature and attributes of virtual property and recognizing the legitimacy and validity of online virtual property.C. Summary and EvaluationFrom the perspective of science and technology, virtual property is essentially a kind of computer code, which has the characteristics of exclusivity, permanence, and relevance. Virtual property is a kind of physical existence that does not have the nature of time and space. Its value is determined by the rules of game and related conventions. From the perspective of the application of the law, the real value of virtual property is what the real legal world cares about. For example, some scholars believe that 'the theft of electronic coins and other violations of electronic coins, if they are to be protected in the criminal law, are protected as property in the criminal law and should be discussed in the chapter on the crime of infringement of property.' It is generally believed that the object of the crime of theft in the criminal law of our country is property, that is, something that has a certain amount of space or can be dominated by people, such as physical objects and electricity, heat, and light. Obviously, network virtual property represented by electronic coins such as Q currency is not within its scope of protection. However, all online transactions of virtual property in online games and electronic commerce rely on the performance of virtual property with a certain amount of real currency value when it is compared with real public and private property, and virtual transactions replace real transactions. Although from the formal point of view, this is the combination of human and technology system, but its essence is a new way of practice formed by human using network virtual technology as an intermediary, and it is a new way of survival that human beings present in the information age. In these economic activities, the rapid circulation of public and private property is achieved through the transaction method of virtual property that is priced against the real currency in the internet. Therefore, the security of virtual property has become an extremely important issue; especially the prevention of theft of virtual property has become an urgent problem. The main objective and significance of this study is to explore the criminal law application and regulation of theft of virtual property.In the age of big data, the legal rights and interests of network participants in our country are often violated. The illegal and criminal acts that violate network virtual property through theft are frequent, which has become one of the difficult problems that need to be studied and solved urgently by theoretical and practical circles. According to the principle of legality, the law does not expressly stipulate that it is not a crime, and we will not be able to punish and curb such crimes. Therefore, to correctly refine and define the concept of virtual property in the application of criminal law and judicial governance from theory and practice, and to discuss and demonstrate the separate criminal legislation against theft of virtual property in the light of relevant legislation in other countries and regions. It will have important factual significance and value significance. The virtual property of the internet, which has the attributes of factual property, will be protected by criminal law to form a value evaluation standard for virtual property, and then the factual property in judicial governance will be effectively supplemented by property in the sense of value. Thus, the interlaced application system of criminal law and criminal lawsuit is constructed.III. PROBLEMS AND LIMITATIONS OF THEFT OF VIRTUAL PROPERTY GOVERNANCEThe application of criminal law and judicial administration of theft of virtual property has certain problems and limitations, mainly manifested in the confusion of judicial practice and the thinness of theoretical views, and it is difficult to provide legal support and security for the strategy of 'network power' in the era of big data. Specifically, the problems and limitations of the criminal law of theft of virtual property in our country are mainly reflected in the following two aspects.A. Problems and Limitations in Judicial PracticeFirst, judgments of the same case are different. For the same act of stealing virtual property on the internet, the people's court has made a judgment on this crime and the other crime, which has caused confusion in judicial practice. Of course, the main reason may appear in the courts and judges' inability to accurately determine the nature and attributes of virtual property, as well as the inability to establish certainty about the theft of virtual property. 'Uncertainty' is the core and key issue of the theft of virtual property. At the same time, there are no other relevant reference standards to draw on, resulting in different judgments in one way or another.Second, China's relevant laws and regulations are missing. According to the relevant provisions of the Criminal Law of China and the judicial interpretation of the Supreme People's Court, there are clear and specific provisions on the connotation and extension of 'public and private property' in the crime of theft. Article 92 of the Criminal Law clearly defines the legal provisions on 'other property', and the current relevant laws and regulations also have a relatively clear connotation and extension of the interpretation of 'property'. QQ, game currency and other virtual property are not provisions in China's criminal law system in the scope of protection. Therefore, from the point of view of the principles and requirements of the legal punishment of crimes, the theft of virtual property cannot be considered as 'public and private property' because of the expansion of the criminal law and other related theories, and thus does not apply to the provisions of the criminal law.Thirdly, based on the cases in China's judicial practice, it is obviously limited to simply identify the theft of network virtual property as a computer crime. This is because it would not be possible to deal with another situation, namely the theft of virtual property of another person without access to a computer. As some scholars have pointed out, 'the idea and practice of recognizing the illegal acquisition of virtual property of others as a computer crime may not only form a penalty loophole, but also lead to a crime penalty that is not suitable, so there are obvious limitations.'Fourth, from the perspective of judicial technology, there are certain difficulties in determining the value of stolen virtual property and the amount of crime. With the rapid development of internet technology, the types of virtual property in online games are increasing day by day. They have been identified as one of the properties protected by the law. However, this virtual property is now not a simple electromagnetic record, but a property with exchange and transaction value. In the criminal law world, how to determine the value of this kind of property and the amount of theft crime will become the key to identify the theft of virtual property. The use of the exchange mechanism in the sense of a computer platform, the conversion mechanism applicable to the real society, or the technical appraisal directly conducted by the relevant appraisal institution, must be measured and selected by judicial practitioners.B. Problems and Limitations of the Theory of Criminal LawSome scholars pointed out that the criminal law application of theft of network virtual property requires careful consideration of the relevant provisions in the criminal law sub-rules and the specific characteristics of the objects protected by each crime. Of course, it should be made clear that virtual property is a valuable property and needs to be protected by criminal law. Furthermore, the application of criminal law on theft of virtual property needs to be explored from the theoretical perspective of the criminal law itself, so as to find a reasonable theoretical tool to get rid of its limitations.First, whether the protection of criminal law is modest. The mainstream view of the academic community is that the theft of virtual property should be a kind of illegal and criminal act and should be protected by criminal law; There are also views that criminal law should not protect virtual property. From the research of Chinese Taiwanese scholar, this objection is not true. He believes that 'in general, according to the view of the priority of legal protection, the criminal law under the rule of law is incomplete and the final character of social policy. In other words, it is not against all interests that the criminal law must intervene to protect, but only for specific interests that are important for stabilizing the order of human social life.' He further believes that 'in this regard, basically, when States choose whether to use penalties for specific acts, they must take into account the following two preconditions: What kind of acts are we required or do not need punishment at all? This is the question of whether the behavior is punishable; moreover, what is the purpose of punishing this act? That is, for what purpose the country specifically aims to punish such acts. This is the question of whether the act has a penalty nature.'Second, the application of the legal interest protection theory. 'Although the legality of the act and the trustworthiness of the law are the core issues of concern to the criminal law norms, we consider the issue of normative efficiency. When the legislator is trying to create the content of the obligation, we have to take into account that human beings are a rational subject, and there is at least a rational basis for thinking behind their choices. That is, a comprehensive assessment of the various advantages and disadvantages in the real environment, to make a decision consistent with the realization of personal interests.' Because of this, from the point of view of legal benefit theory, the protection of stolen virtual property in criminal law reflects the maintenance of personal interests and at the same time promotes the trustworthiness of the law to the society and has positive significance. Of course, 'although there are procedural elements of some penal acts, such as homicide and injury, there is indeed a superficial identity between life and physical legal benefits and the object of behavior. However, compared to some special types of crimes, such as theft, there is no apparent identity between the object of the crime and the protection of legal interests. It is stated that the object of the crime of theft is an entity, and its protection of legal benefits is the actual dominance of things. Strictly speaking, the image of the legal interest does not mean that the legal interest itself has a physical character, but is only expressed on the basis of entities outside the empirical world.' 'For the factual state of the same infringement, although there is the possibility that the above conversion evaluation view defines the nature of the protection of legal interests, it is worth considering whether there is a priority between the two views. The answer to this question ultimately depends on the basic relationship between the State and the people. In a centralized or absolutist country, the interests of the community are absolutely superior to individual interests, and the importance of personal interests is put into its value to the community.' In addition, the criminal law application and protection of theft of virtual property and other acts pay attention to the overall property of individuals based on the protection of legal interests. The famous scholar Xue Zhiren from Taiwan region also holds the same view. 'Under the current law in Taiwan region, the crime of obtaining electromagnetic records for no reason is not to protect the social trust of information security, nor is it to protect the privacy of electromagnetic records, but to protect individuals. It is the entire property.'Third, the legal punishment of crime and the interpretation of criminal law. In some countries, the principle of statutory punishment of crimes is also called the 'principle of clarity'. That is, the statutory punishment of crimes is the basic requirement of the country under the rule of law, and based on the requirement of legal clarity of crimes, it must be interpreted and applied judicially. In Chinese criminal law, the object of crime in larceny is clearly defined as 'public and private property', while virtual property is a kind of property, 'property is not equal to property'. Therefore, through the criminal interpretation of the criminal object of theft, we will find that different interpretation methods and techniques will determine the behavior characterization of theft of virtual property and the final conviction and punishment.In short, the basic purpose of the criminal law is not to ensure the order of social life, nor to limit power, but to protect the legal interests of the public and individuals. The criminal law application of theft of virtual property embodies the purpose of the criminal law and the essence of the legalization of crimes and punishments, that is, the legal punishment of crimes through interpretation is not only applicable to the field of criminal responsibility, but also to the field of criminal and criminal judgment. This is consistent with the no-value theory of results and the requirements of the law of crimes. Just as some scholars have commented that behavior is worthless and results are worthless, 'any theory cannot really eliminate the opposition between behavior is worthless and result is worthless. Only by choosing between the two functions can we finally solve the problem. This requires a combination of subjective and objective elements of wrongfulness.'
IV. BASIC PRINCIPLES OF INTERLACING APPLICATION OF CRIMINAL LAW AND CRIMINAL PROCEDUREA. Interlaced Thinking: The Double Examination of Facts and ValuesThe behavior characterization of stealing virtual property, like virtual property, has the perspective and system of fact judgment and value evaluation. The relevant theories and practices at home and abroad are analyzed from the perspective of crime itself or the protection of the legal system, and the criminal law application of theft of virtual property is not creatively linked to the system of facts and values. There are certain flaws in their conclusions. The interlaced thinking of criminal law and criminal prosecution has the system and characteristics of facts and values. It not only requires the analysis of the theory of crime and the legalism of crime punishment from both facts and values, but also requires the integration and unification of facts and values. For example, Habermas, a famous scholar, believes that every more complete idea will use a fact or state of affairs as a definite content and object and express it in language or law. In the course of the statement, this idea needs to be further tested whether it is true or false. The attitude of the subject to the thought depends on its own unique value evaluation activities. It is a fact that only the idea or the true expression of the affirmation is true.The famous philosopher Dewey believes that in addition to facts, value is essentially a valuable thing that can be reflected or felt by people when it exists. Value itself is a process of identification, and attempts to give a certain definition of value through complete pointing will be futile. With regard to real or false things, we must criticize and specify through value, otherwise it is possible to include everything in value. Therefore, the above analysis and comparison can avoid the separation of facts and values caused by the theft of network virtual property by the fact theory system or axiology system alone, and the ontological system or normative wheel system as the standard. The dual system of facts and values emphasizes the integration and unity of the system, thus forming the so-called 'evaluation system based on facts and values', and advocates the dialectical unity of fact judgment and value evaluation. It has intrinsic rationality: it can avoid objective imputation and subjective confession. Although the truth judgment and value evaluation are mixed but the context is clear. It can fully explain the internal connection between fact judgment and value evaluation.Based on the theoretical and practical problems of the criminal law applicable to the theft of virtual property mentioned above, the current legal system and related theories, as well as the insufficient and perfect solution to related problems, must re-examine the criminal law application of theft of virtual property from other perspectives and methods. Based on this basic judgment, it is possible to try to look at this problem from the system of facts and values. It may produce new academic increments, which can be beneficial to the conviction and punishment of theft of virtual property in judicial practice.Experience and facts raise questions about the essence of value. 'Value is interpreted from a naturalistic point of view as the intrinsic nature of things in terms of the results they achieve. How to control the process of development of things in order to obtain stability at the end and tend to create other values, this problem leads to questions about value judgment or evaluation.' Theft of virtual property is a kind of rational control experience, so it is a fact in essence and needs to be judged and analyzed. The criminal law application of stealing virtual property is a kind of evaluation or criticism based on fact judgment. It needs people's life experience of legal belief, system or action to detect and choose. Of course, when the facts and value system are applied to the criminal law of the theft of virtual property, it is also necessary to pay attention to the subversion of value, that is, the reversal of value evaluation. For example, the professional value of businessmen and entrepreneurs, the intrinsic value of which people rely on for success and business, is promoted as a universally valid moral value, and even as the 'highest value' of these values.Therefore, the system of facts and values is of great significance to the criminal law application and judicial administration of theft of virtual property. As mentioned above, virtual property includes the content of facts and also includes the content of values. It is reasonable and applicable to analyze the criminal constitution of theft of virtual property through fact judgment and value evaluation. Of course, as some scholars have pointed out, the Chinese criminal constitution system is based on experience, not on the objective theory emphasized by western countries. Objectivism and empiricism in western philosophy and even law are the historical traditions of western society. Whether it can be applied to China with special philosophical background still has doubts. Although fact judgment and value evaluation are rooted in and developed in western countries under the rule of law, the traditional criminal constitution system in China is not only the whole of identifying and judging facts, but also the value evaluation after the establishment of crime. For example, there are four major components of crime in our criminal law, namely, the object of crime, the objective aspect of crime, the subject of crime, and the subjective aspect of crime, and there is a certain order of order, which is the basic significance of revealing all aspects of crime one by one. And in judicial practice, it can guide the judicial person to follow this arrangement to analyze the case and convict the sentence, that is, in fact, form a kind of criminal cognitive thinking of 'block division, block by block analysis, comprehensive evaluation'. 'The above characteristics of China's criminal constitution system show that its basic principles and facts are completely compatible with the value theory, and therefore do not belong to the fact system or axiology system, nor does it belong to the existentialism system or the normative system.'B. Interlacing System: The Interactive Integration of Facts and ValuesTheoretically speaking, the theoretical basis of the theft of virtual property is mainly the requirement of legalism and the need to achieve the unity of subjectivity and objectivity. However, according to the specific provisions of our criminal law and relevant judicial interpretations, the legal standards or content of this kind of crime punishment are not specific or have not been unanimously recognized. The unity of subjectivity and objectivity in judicial practice is difficult to implement because it lacks clear theoretical support and accurate positioning. Therefore, based on the requirement of legal clarity of crime penalty, in order to achieve the unity of subjectivity and objectivity, the construction of standards applicable to theft of virtual property criminal law has become an important issue in identifying related crimes and the key to distinguishing facts and values. From the perspective of fact and value system, crime can be understood as the sum of fact judgment and value evaluation. Whether it is the unity of subjectivity and objectivity in the sense of value or fact, it must be limited to the basic factual state, so that the factual judgment of theft of virtual property becomes the basis and premise, and becomes the unity of subjective and objective in fact.On the one hand, it is necessary for the judicial person to collect and judge the various facts and objective elements adequately, so as to provide the basis and premise for the evaluation of the value of crime measurement. At the same time, the individual judgment of the various constituent elements of the act is also a basic requirement for the unity of the facts. Reflecting the perpetrator or the theft itself, or various legal interests, it constitutes the complete content and standard of the unity of the facts. On the contrary, the unity of the subjective and objective aspects of value requires that the theft of virtual property can be preceded or followed by the creation of elements other than the actor and the act, and that it can be a non-embodiment of the mission of protecting legal interests. It can also be an integrated and comprehensive evaluation of the various elements of the crime.The act of stealing virtual property is a kind of illegal and criminal act, which should be protected and adjusted by the criminal law of our country. However, it has become one of the hot topics in the theoretical and practical circles. Based on the theoretical analysis and discussion mentioned above, this paper proposes to examine from the point of view of facts and values, so as to reflect the principle of the unity of the requirements of legal clarity and subjectivity. Especially in the modern network society, the criminal law should clearly stipulate the crimes, responsibilities and penalties. This is the fundamental requirement of the legalization of crimes and punishments in the country under the rule of law. The criminal law application of theft of virtual property may not require much clarity in judicial practice. German scholar believes that there may be some deviation between the requirement of clarity in the application of criminal law and the performance of judicial practice. It can no longer be expected that the clarity of the statutory provision of the penalty of crime will be understood as a deterministic accuracy requirement, but rather as a legal guiding significance. In other words, the legislator only defined a scope for the criminal law application of the relevant criminal acts, and the requirement for the judiciary is that although it is not perfect, it must be presented in detail. However, for the criminal law scholars, the requirement of legal legality of crime punishment is fundamental to the application of criminal law norms and the protection of human rights. The criminal law application of stealing virtual property must also work in this direction. Perhaps through the unification of facts and value system, the legal guiding significance of crime punishment, and even the requirement of clarity, will be realized. From the perspective of fact and value system, in particular, the fact system applicable to the criminal law of theft virtual property mainly includes the time of theft, the place of theft, etc. reflect the age and identity of the actor's elements; a form of theft that reflects theft itself. The value system applicable to the criminal law of theft of virtual property is mainly embodied in the actual value of virtual property, the overall evaluation of the judicial person's behavior, the damage results after the behavior, and the assessment of the social harmfulness of the society and the law.C. Judgment of the Facts of Criminal Prosecution in the Administration of Virtual PropertyFirst, the time requirement in the matter of fact judgment. From the perspective of fact, to examine the theft of virtual property, what happens in the matter is the unity of subjectivity and objectivity in the sense of fact. That is to say, it is necessary to clarify the time requirement for the factual judgment of the application of the criminal law of theft of virtual property, that is, in the course of the theft. It is generally believed that the act of theft may not be in the sense of fact. It is only in the process of theft that it is a fact. Neither ex ante nor ex post is a fact, and the acts occurring at these two stages are of value. In the criminal law of our country, the act of larceny is the time when the larceny occurred. This is also the time requirement and scope of the crime of theft facts. Therefore, the principle of 'subjective and objective unity' emphasized in our criminal law is in fact to emphasize the unity of subjective and objective when the criminal suspect acts. With regard to the theft of virtual property, the actual judgment time should be the time when the criminal committed the theft, not the preparation, and subsequent sale. For example, in the specific provisions of the criminal theory, the German Criminal Code clearly requires that there must be a time requirement for the crime, that is, the 'act of the perpetrator', indicating its emphasis on the factual elements of the crime.From the point of view of the German and Japanese criminal law system, an important feature of the crime theory is to limit the criminal behavior to actual behavior. The practice of behavior, that is, the behavior in the course of the crime, is the emphasis on 'behavior'. It is of great significance to determine the state of theft of virtual property and to define the facts of the act. It can be the basic criterion of factual judgment. For example, the state of theft of virtual property is conducive to mastering the realistic value of virtual property at that time, and is conducive to correctly determining the amount of crime of theft of virtual property, providing a realistic reference for the specific crime. For another example, when emphasizing the theft of virtual property, it is conducive to the judicial authorities to grasp relevant evidence and provide reference factors for subsequent sentencing.Second, the factual judgment determines the elements of the combination of elements. From the point of view of the criminal object of larceny, the fifth chapter of the criminal law of our country is about the crimes of infringement of property, in which the criminal object of larceny is clearly defined as 'public and private property'. From the point of view of fact and value system, property is a concept in the sense of fact, and virtual property is a view in the sense of value. From the judicial practice, it can be clearly seen that the court and the judge did not distinguish between property and virtual property. For example, in Yan's theft case, the criminal object of the criminal suspect Yan's invasion is invisible, and the virtual property that requires value judgment is not the public or private property that can be seen in the entity stipulated in the crime of theft in China. According to the basic requirements of the principle of legality, this kind of behavior does not constitute the crime of theft, but should be stipulated separately or specifically through relevant legislation.The criminal law of our country specifies that larceny is a crime of amount. The conviction and punishment of larceny require the determination of the value of the amount of larceny. However, based on the characteristics of virtual property, it is necessary to determine the amount and value of the crime in order to correctly punish the theft of virtual property. In our country's relevant judicial practice, there are three main methods to carry out the determination. The first is to look at the real value that game participants need in the network to calculate; the second is determined by the value and price of transactions in real life; the third is to confirm through the pricing of service providers and game operating platforms. From the perspective of fact judgment, the second method of determining the amount of crime is more feasible, because the current real value of virtual property can be reflected through market transactions, which can reflect both the transaction value of virtual property and the player's labor in the course of the game value.Third, the factual judgment is mainly carried out on the perpetrator or behavior. In a general sense, the behavior of the actor itself can be understood as fact. Just as Liszt, etc. understands behavior as means and verb behavior, if what is behind the behavior or verb is examined, it may enter the scope of value evaluation. Therefore, the factual judgment of the crime is mainly aimed at the perpetrator or behavior. The 'worthless behavior' that our country's criminal law circles discuss enthusiastically is a typical value evaluation, because it has separated from the behavior itself and does not have the factual significance of the behavior. As mentioned earlier, the time requirement for emphasizing factual judgment is in the matter, and it is reflected in the actor or behavior as 'actual behavior'. The concept of 'criminal behavior' used in criminal law in our country is to look at 'behavior' from outside of behavior. There is no real understanding of the theoretical structure of behavior, and no understanding of the factual meaning of behavior from the behavior itself.The application of criminal law for theft of virtual property requires the fact to judge the subject or the perpetrator of the crime and the illegal and criminal acts committed by them. In judicial practice, one of the key problems of virtual property crime is the identification of criminal suspects and their behavior. Due to the fact that people generally use network names on the internet, coupled with the lack of relevant laws, the evidence and authentication in the handling of cases have become another difficult problem to solve. The act of stealing virtual property is itself a modification or change of electronic data or electromagnetic records, which has certain objectivity and authenticity. Therefore, the theft of virtual property can be dealt with in other ways and forms as evidence. 'This information has been fixed in the work records of film, tape or related units, that is, as long as it can be proved that the data stored on the network is in an unmodified original state, this electronic evidence can become legally recognized evidence.'Fourth, the factual judgment reflects the protection of legal interests. The protection of legal interests in criminal law is the key to punishing crimes and guaranteeing human rights. Legal benefit is the main content and standard of the fact judgment of criminal law. Once there is no requirement of the subject protected by legal interests, the criminal law will have a description of the crime. As Liszt's point of view, when crimes are examined as external, legal interests cannot enter the field of vision; only when the crime is investigated as a legal infringement can the legal interest enter the field of vision. It is generally believed that the protective legal benefits of larceny mainly include possession-based ownership and other rights, or possession of possession itself, or possession of legal possession. Therefore, the fact judgment of the application of the criminal law of theft of virtual property should not only pay attention to the time requirements, elements and the subject of behavior, but also pay attention to the legal benefits that the criminal law should protect by punishing the crime. The legal benefits protected by the criminal law of theft of virtual property are the possession, use, ownership, or property interests of the actor for virtual property. To punish the theft of virtual property is to protect the victim's property and interests from the fact of legal interests, and is conducive to the health and stability of the network order.D. Evaluation of the Value of Criminal Law Application in Virtual Property GovernanceFirst, the time requirement of value evaluation. As mentioned above, the time requirement in the matter is the factual judgment of stealing virtual property, and the prior or afterwards is the unity of the subjectivity and objectivity of the value. It is generally believed that before and after the implementation of the act can affect the sentence to a certain extent, but it will not fundamentally determine the conviction. If it is indeed necessary to criminalize from the beginning and the end of the act, it can only be done in a way that is sinful in the sense of value. For example, in the criminal law of our country, the special cases and individual cases of legislation such as the act of preparing to commit crimes are criminalized, and the phenomenon of value crime is formed. This is contrary to the spirit of modern criminal law and the fact of crime determination theory. Therefore, the characterization of the act of theft of virtual property should be based on the expression of the intention and the way of existence of the perpetrator at the time of the act, and the evaluation of the behavior before or after the event should all belong to the category of value evaluation and do not meet the factual standards of criminal identification. It cannot meet the requirement of legal clarity.Of course, the clarity required in the legalization of crimes is the realization of 'statutory crimes' and 'statutory punishments' through prior legal provisions. This is not to say that prior actions comply with the criminal law and other laws, will produce reasonable and justified punishment results. Here also consider the legitimacy of the content of the penalty. This is also the question of value evaluation in the sense of hindsight. The criminal law application of stealing virtual property, from the point of view of value evaluation, all need to be evaluated by the criminal law system or the spirit of legislation afterwards.Second, the overall evaluation is the unity of the subjective and objective values. The fact judgment is the determination of the elements, and the overall evaluation is the unity of the subjective and objective values. Through the overall evaluation of the theft of virtual property, such as the manifestation of virtual property, the form of theft, the determination of the amount of virtual property, and the determination of the place where the crime was committed, it can be confirmed whether this is a crime and what kind of crime it belongs to. It achieved the purpose of incrimination. Virtual property, performance, and place of crime are all objective, and the overall evaluation of this factual element is a subjective category. Therefore, the evaluation of the value applied to the criminal law of theft of virtual property must be the unity of objective facts and subjective categories in the whole sense. Only in this way can the goal and requirements of the crime penalty be reached.Third, value evaluation is an act of understanding other than the actor. Value evaluation, in terms of the subject, is a person other than the actor, including the victim, as well as the judicial personnel of the public inspection law, and of course also includes the public. This kind of value evaluation is value because it evaluates behavior from outside the actor and understands behavior from outside the behavior. The evaluation of the behavior of stealing virtual property, considering and understanding from factors other than the perpetrator and the behavior, may affect the final sentence and penalty, but generally does not determine the factual conviction. As mentioned earlier, if there is a real need for criminalization, it can only be adjusted and applied by way of value criminalization, by special exceptions to criminal law legislation or individual provisions of judicial interpretation. Therefore, the kind of division of labor in the overall crime facts in Germany and Japan to carry out part of the behavior to be criminalized, are worthy of absorption and reference. The criminal act of stealing virtual property cannot be regarded as larceny because of the requirement of legal clarity of the crime penalty, but should be subject to criminal sanction and adjustment according to the special case of foreign legislation.Fourth, value evaluation is an element that does not reflect the interests of law. Value evaluation reflects the factors other than legal interests, such as the consideration of criminal policy, the impact of social harmfulness, and the determination of the exclusion of criminal causes. In the process of identifying and evaluating the theft of virtual property, the policy factors of legislation, the strategic requirements of the party and the country, and the development and demand of society will all have an impact on the characterization of this behavior. For example, the aforementioned virtual properties such as 'currency', 'weapons', and 'equipment' in online games have not been recognized as property for some time. With the development of the internet and the need for people's leisure and entertainment, it has gradually become a valuable property and has been recognized and protected by Chinese laws and criminal laws.Philosophically speaking, the dual standards of fact and value are gradually being eliminated, and the two are gradually transforming and complementing each other. 'An overall idea to eliminate the dichotomy between facts and values is to reveal and build the meaning correlation domain between facts and values, take the perspective of subject and object exchange as the perspective, and take human self-transformation as the foundation. In the transcendence of experience life, the mutual communication and transformation of facts and values are realized.' Because there is no unified standard for the judgment and evaluation of facts, the concept that originally belongs to the category of facts may be valued. The persistence of facts is not easy to grasp, but the evaluation of value varies from person to person. 'In the context of jurisprudence, natural law thinking and legal positivism both uphold the theoretical model of the dichotomy of facts and values. However, neither natural law thinking nor legal positivism can avoid the cycle of infinite recursion, and the dichotomy of facts and values has collapsed at the level of legal philosophy.' For example, the subjective and objective aspects of criminal law are unified. Some people judge from the perspective of fact, while others view it from the perspective of value evaluation. As a result, this principle is no longer a simple fact or value, but a combination of both. However, some of the basic elements of the composition of the crime did need to be viewed from a factual point of view; otherwise there would be no criterion of certainty and clarity.As for the criminal law application and judicial administration of theft of virtual property, it is very important to judge the elements of fact. It directly determines the outcome of a conviction. If we cannot guarantee the accurate understanding and grasp of the facts, it will lead to the crime of the crime and the judgment of the crime. The value evaluation based on the behavior subject or subjective psychology, and even the social influence, is arbitrary because it is difficult to grasp, which leads to the disagreement and controversy between the judicial practice and the theoretical point of view on the theft of virtual property. Since the industrial society, the fact factors of the legal system and the fact aspects of the theory have gradually developed in the direction of formalization, and the crime theory has also presented a standard system of fact nature. 'There is a distinction between the subject and object in the sense of pure value and the subject and object in the value of facts. The subject of crime generation is society, and the object is the act or the actor and the result. The social (victim) subject is different from the descriptive nature of the subject of fact value, but it is evaluative. It is the fundamental reason why the crime can be introduced into the mode of negotiation and reconciliation.' Only by acknowledging that everyone is always thinking about their own interests can we overcome all difficulties. However, the individual's right to freedom also meets the basic needs for survival in the social order. Whether this order is 'correct' does not depend on the individual's happiness.At this point, based on the analysis and elaboration in the full text above, it can be concluded that the theft of virtual property in the era of big data does not constitute the crime of theft. Legislators should formulate special provisions of the criminal law or amend the single-line criminal law to punish the theft of virtual property, to protect the rights and interests of the victims. In fact, legislation does not cover the type of theft of virtual property. Under certain conditions, the judiciary in fact has the possibility to correct legislation and judicial deviation. When there are some differences in the application of criminal legislation to the penalty of theft of virtual property, the value evaluation will play a complementary nature and function. Legislation is sometimes intentional and sometimes a last resort. Due to the fact that the supplementary legislation is insufficient, due to the public opinion, the national strategy and the value system of the criminal policy will take corresponding remedial measures. In the final analysis, however, this value evaluation is an exception and cannot replace legislation as the basic form of a factual standard. Moreover, once there is a situation in which the legislation transfers power, then the legislature must regulate the criminal act of stealing virtual property through clear regulations or authorization regulations, and achieve the unity of facts and values.
