【作者】 张凌寒；

【导师】 于莹；

【作者基本信息】 吉林大学 ， 民商法学， 2010， 博士

【摘要】 工业和信息化部2010年4月发布的数据显示,中国互联网网民总数达到4.04亿人。2009年中国网络游戏产业实际销售收入达到271亿元,新增就业机会达万人以上。美国、韩国、我国台湾地区和大陆地区都相继在司法上承认了网络虚拟财产的财产属性并对针对网络虚拟财产的犯罪行为加以惩处。但是作为一种新型财产权利,侵权责任法提供的救济私权路径的缺失不免让人遗憾。笔者对网络虚拟财产的内涵和外延进行了较为细致的梳理,相对于传统财产权利的特点使其在侵权责任制度的方方面面也体现了独特之处。在网络虚拟财产侵权责任的归责原则方面,基于网络运营商的独特地位,笔者适用过错责任原则的前提下提出了对网络运营商侵权适用过错推定规则。网络虚拟财产侵权在行为违法性和损害事实和注意义务的内容方面由于网络侵权行为的特性呈现出了不同于传统侵权行为的特点。而网络运营商与第三方共同承担网络虚拟财产侵权责任的类型根据情况的不同而有所不同,不同于传统的共同侵权责任的承担。另外在责任承担方式、赔偿损害数额认定等细节上的特点笔者也予以论述。基于网络虚拟财产侵权责任的各项特点,本文结尾提出了对我国网络虚拟财产侵权责任体系的立法建议。更多还原

【Abstract】 Internet technology brings a lot of facilities to people’s life. Meanwhile, it also brought many new problems to us. I have proposed the tort liability of network virtual property in our country, which hopes to promote the research of theoretical issues and solve the problem produced in practice.In addition to the introduction and epilogue, the body of this thesis is divided into five chapters.Chapter 1 dissertation on basic problems of network virtual property Elementary concepts and theoretical issues relating to the network virtual property are examined. In first section, I weigh three elements to determine which is the network virtual property this thesis discuss: (1) whether the environments is open or closed, (2) whether it has been commodified and (3) whether it is collaborative. Then I defined network virtual property is rivalrous, persistent, and interconnected network resource. I conclude network virtual property belongs to private property scope and completely can be recognized as subject matter of property right. In second section, I commented different views of the right’s attribute of network virtual property. Next I define the network virtual property as a special real right. In third section, expound on the concurrent theory of contract liability and tort liability, the shortcoming of the contract liability and it tends towards absolute tort liability. In fourth section, I compare the network tort and network virtual property tort, network virtual property tort is the special network tort because of the tort subject.Chapter 2 the criterion of imputation of network virtual property tort liability By comparing concept regarding the criterion of network virtual property tort liability, addressing criterion of network virtual property tort liability, I holds that fault liability as fundamental principles of the imputation of network virtual property tort liability. I think the network developer should bear the presumptive tort doctrine, it removes the burden of proof from plaintiff, it could be seen as an exception of fault liability.Chapter 3 constitutive requirements of the network virtual property tort liability In first section, I introduce the views on the constitutive requirements of tort liability. As the analysis tool, I demonstrate there are four essentials that the liability of network virtual property the infringement requires: the illegal acts, the fact of damage, the causation and the subjective fault. Especially the illegal act as a depend element of the constitutive requirements of network virtual property tort liability. In second section, I descript the different standards and types of illegal acts. In third section, the fact of damage, first I list the main type of the fact of damage caused by network virtual property tort behavior. I conclude the features of the fact of damage caused by network virtual property tort behavior. The fourth section covers causation of network virtual property tort. By discussing the concept of causation, analyzing various theories on determining the causation, and examining ways of the application of causation, I come to a conclusion that the network developer’s mission only causes the fact of damage with the other acting of the tort. In the fifth section the subjective fault I focus on the network developer’s subject fault. The standard of the network developer’s subject fault is the violating of duty of care. I list the main duties of care. First the network developer should bear the 36th of the tort liability act and the obligation of security of the network developer. Then analyze the“China first cases on network virtual property”, namely the case of LiHongchen V. Beijibing, which lifts Chinese research curtain on network virtual property.Chapter 4 bearing civil liability of network virtual property tort. In first section is about the third party or the network developer as the only subject of bearing civil liability of network virtual property tort. I discuss whether the virtual subject could bearing civil liability of network virtual property tort. In second section, I discuss the share of liability by the third party and the network developer. According to the fault of the network developer, the first situation is when the network developer fully aware the mission will cause the fact of damage but indulgent it happens, the network developer is intentional. The second situation is when the network developer didn’t fulfill its obligation of security, the network developer is negligence. When the network developer is intentional, he should bear the joint liability with the third party; When the network developer is negligence, he should bear the proportionate tort liability confirmed by his fault, contribution to damage and hazard. In third section, I introduce the methods of bearing civil liability of network virtual property tort, and how to calculate the amount of compensation.Chapter 5 China’s legislative design of the network virtual property tort liability. First I carried out the assessment of status quo of China’s legislative design of the network virtual property tort liability. The existing network tort and property tort couldn’t cover the network virtual property tort liability. Our country should be re-carding the specific liabilities, putting the request of the network virtual property tort within the frame work of the responsibility of the form into the corresponding integrated into tort law. Then the detail should be resolved by the act of network virtual property.更多还原