网络游戏外挂的刑法问题研究
发布时间：2019-02-08 20:55
【摘要】：随着网络时代的到来，网络游戏成为倍受青年人喜爱的大众娱乐项目，随之而来的网络游戏外挂,扰乱了正常的网络游戏市场秩序，侵犯了网络游戏开发商、运营商和玩家的权益。网络游戏外挂程序是一种用于提升游戏功能的软件，它是随着网络游戏的发展而出现的。网络游戏外挂的定义，在学界存在诸多的争议，但主要还是从技术与法律两个方面对外挂进行了偏重于不同层面的定义。笔者认为外挂是通过作弊手段，模拟键盘和鼠标的运动，或者绕开、修改服务器端程序的限制，从而增强游戏的实际效果的作弊软件。 在网络虚拟世界中，我们可以担当现实生活中难以出现的人生角色，从中体验不一样的人生乐趣。伴随网络游戏而来的外挂程序，从初次出现便颇受争议，对现有的法律规范体系产生了巨大的冲击。这就要求新的法律出现，来对这一新生事物进行规范。法律的滞后性导致传统的刑法理论和立法规制无法跟上现在社会的发展步伐。立法的模糊性以及司法解释的复杂性，，导致理论界与实务界以及各界内部对网络游戏外挂所涉及的一系列行为产生不同的理解。 由于本身的复杂性与多样性，网络游戏外挂在运行过程中具有不同的侵害性质和危害程度。据此，应当适用不同的法律法规：良性外挂，如果社会危害性较小，通过行政、民事法律便可解决；恶性外挂，应对其侵犯著作权的行为进行分析，根据其行为的不同，判定其为侵犯著作权罪、销售侵权复制品罪或者两罪数罪并罚；不管是良性外挂还是恶性外挂，如果严重扰乱市场经济秩序，情节特别严重，构成犯罪的，应当认定行为人为非法经营罪。同时，由于网络游戏外挂自身的特殊性，扰乱市场经济秩序的严重程度不能仅仅以经营数额、违法所得和销售数量来认定，应该有一个更为综合性的标准，期待司法部门出台解释予以解答。
[Abstract]:With the coming of the network era, the online game becomes the popular entertainment project which is popular among the young people, and then the online game add-on, which disturbs the normal order of the online game market and infringes on the developers of the online game. The rights and interests of operators and players. Online game add-in program is a kind of software used to improve the function of the game, it appears with the development of the online game. There are many controversies on the definition of online game add-on, but mainly from the two aspects of technology and law, it emphasizes on different levels of definition. The author thinks that external storage is cheating software that simulates the movement of keyboard and mouse through cheating means, or bypasses, modifies the limitation of server-side program, thus enhances the actual effect of the game. In the virtual world of network, we can take on the difficult role of life in real life, and experience the different life fun from it. With the online game, the plug-in program has been controversial since its first appearance, which has had a great impact on the existing legal system. This requires the emergence of new laws to regulate this new thing. The lag of law leads to the traditional criminal law theory and legislative regulation can not keep up with the pace of social development. The fuzziness of legislation and the complexity of judicial interpretation lead to different understanding of a series of behaviors involved in online game add-on in the theoretical and practical circles as well as in all walks of life. Because of its complexity and diversity, online game plug-in has different nature and degree of harm in the process of operation. According to this, different laws and regulations should be applied: benign external relations, if the social harm is relatively small, through administration, civil law can be solved; According to its different behavior, it should be judged as the crime of infringing copyright, the crime of selling infringing copies or the punishment of two crimes; No matter it is benign or malignant, if the circumstances are especially serious and constitute a crime, the perpetrator shall be regarded as the crime of illegal operation. At the same time, because of the particularity of the online game plug-in itself, the severity of disrupting the order of the market economy cannot be determined solely by the amount of business, illegal income and sales quantity, and there should be a more comprehensive standard. Look forward to an explanation from the judiciary.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2418784
[Abstract]:With the coming of the network era, the online game becomes the popular entertainment project which is popular among the young people, and then the online game add-on, which disturbs the normal order of the online game market and infringes on the developers of the online game. The rights and interests of operators and players. Online game add-in program is a kind of software used to improve the function of the game, it appears with the development of the online game. There are many controversies on the definition of online game add-on, but mainly from the two aspects of technology and law, it emphasizes on different levels of definition. The author thinks that external storage is cheating software that simulates the movement of keyboard and mouse through cheating means, or bypasses, modifies the limitation of server-side program, thus enhances the actual effect of the game. In the virtual world of network, we can take on the difficult role of life in real life, and experience the different life fun from it. With the online game, the plug-in program has been controversial since its first appearance, which has had a great impact on the existing legal system. This requires the emergence of new laws to regulate this new thing. The lag of law leads to the traditional criminal law theory and legislative regulation can not keep up with the pace of social development. The fuzziness of legislation and the complexity of judicial interpretation lead to different understanding of a series of behaviors involved in online game add-on in the theoretical and practical circles as well as in all walks of life. Because of its complexity and diversity, online game plug-in has different nature and degree of harm in the process of operation. According to this, different laws and regulations should be applied: benign external relations, if the social harm is relatively small, through administration, civil law can be solved; According to its different behavior, it should be judged as the crime of infringing copyright, the crime of selling infringing copies or the punishment of two crimes; No matter it is benign or malignant, if the circumstances are especially serious and constitute a crime, the perpetrator shall be regarded as the crime of illegal operation. At the same time, because of the particularity of the online game plug-in itself, the severity of disrupting the order of the market economy cannot be determined solely by the amount of business, illegal income and sales quantity, and there should be a more comprehensive standard. Look forward to an explanation from the judiciary.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
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本文编号：2418784
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