Liu Xianquan: Professor of East China University of Political Science and Law, Doctor of Laws, President of the Criminal Law Research Association of Shanghai Law Society
1. Types of Metaverse Space Crimes at Different Stages of Development
2. Comparison and distinction between crime in Metaverse space and existing crime types
3. The Impact of Metaverse Space Crime on Traditional Criminal Law Theory
4. The Criminal Law Regulation Path of Metaverse Space Crime
Metaverse space has characteristics different from real space and other virtual spaces. Metaverse technology brings new criminal risks as it develops. In the primary development stage of Metaverse technology, fraud, fundraising, pyramid selling crimes and data crimes may occur in the Metaverse space. In the advanced development stage of Metaverse technology, crimes against personal rights may occur in the Metaverse space. The cybercrime, artificial intelligence crime and other crime types concerned by the Metaverse space crime and criminal law theory have both commonalities and uniqueness, and are worthy of special study rather than “academic reverie” and trigger a “new round of academic bubble”. Metaverse crime may have an impact on the original form and content of some legal interests and traditional criminal behavior.Crimes committed in the name of the Metaverse can be identified as ordinary crimes. However, for crimes in the Metaverse space that may cause theoretical impact, the principle of objective interpretation should be properly used to determine the relevant crimes under the premise of respecting the original intention of the legislation.
In October 2021, the famous social networking site Facebook officially announced its name change to Meta, and its founder Zuckerberg declared that the Metaverse would be the next new world of human society. Immediately after that, Metaverse concept stocks and Metaverse products appeared one after another, which pushed the term “Metaverse” to the forefront and became the most popular term and topic at present. In fact, the concept of the Metaverse first appeared in the 1992 science fiction novel “Avalanche”, and it can never be said to be a completely new vocabulary. However, since development, the connotation and extension of the Metaverse have changed to a certain extent. In theory, there is still no accurate definition that has fully reached consensus. At present, there is basically a consensus that the Metaverse is a virtual space that interacts with the real world under the development of emerging digital technology and supported by reality expansion technology. As an interactive space between virtual and reality, the Metaverse has features that are different from the real world and different from other virtual spaces we have come into contact with in the past. However, in any case, the Metaverse cannot be completely separated from the current rule world, and the governance of order and behavior regulation in the Metaverse space will inevitably become an important content that cannot be ignored in the future development of the Metaverse. As an important role in the existing rule world, law will definitely play a crucial role in the governance of order and the regulation of behavior in the Metaverse. At the same time, the criminal law, as the safeguard law of other departmental laws, also plays an indispensable role. The author intends to discuss the governance of the development of Metaverse space from the perspective of criminal law, focusing on the characteristics of crime in Metaverse space, the possible impact of crime in Metaverse space on existing criminal law theories, and the path of criminal law regulation.
1. Types of Metaverse Space Crimes at Different Stages of Development
Like all scientific and technological developments, the development of Metaverse technology does not happen overnight.It should be acknowledged that the current exploration of Metaverse technology is still in its infancy. With the improvement of related technologies and the establishment of related systems, the exploration of Metaverse technology will develop to a more advanced stage. The criminal risks involved in the Metaverse are closely related to the development of Metaverse technology, and different types of crimes may occur in the Metaverse at different stages of development.
Metaverse space crime in the primary developmental stage
The primary development of Metaverse technology mainly revolves around the construction of virtual space. Although scholars continue to emphasize that Metaverse space is different from virtual space, it is undeniable that virtuality is one of the characteristics of Metaverse space.In other words, in the primary development stage of the Metaverse, when the Metaverse cannot fully realize the full-real experience, the virtuality will become the main feature of the Metaverse.Virtuality is not only the intuitive feeling that Metaverse space brings to users, but also an important manifestation of the difference between Metaverse space and real space. As mentioned above, the Metaverse space essentially shortens the distance between people, thereby changing some relationships in people’s social activities. As an emerging technology concept, it has obvious appeal to the public. However, in the initial stage of development, the public does not have a sufficient understanding of the concept of Metaverse, especially the complexity of artificial intelligence, blockchain, cloud computing, chips and other technologies that Metaverse relies on has expanded and deepened. The gulf between the general public and the Metaverse. Under this circumstance, some criminals began to use the emerging technology concept of Metaverse to commit fraud, fundraising, and pyramid schemes. For example, there are currently blockchain games under the banner of the Metaverse, which require users to exchange money for virtual currency in the game, which is suspected of fraud crimes. As we all know, the basic structure of fraud crimes is that the perpetrator makes others fall into a wrong understanding and then disposes of property by fabricating facts and concealing the truth. Since the concept of Metaverse space has not yet been popularized, it will inevitably leave a huge space for criminals to carry out acts of “fabricating facts and concealing the truth”; in addition, some people in the society are eager to seek money, and related frauds can easily make these People fall into misunderstandings and cannot extricate themselves. The superposition of these two factors can easily lead to the realization of the criminal purpose of the perpetrator of fraud crimes in the primary development stage of Metaverse technology. In addition, to a certain extent, the concept of Metaverse space has certain investment properties, and it can easily become a tool for actors to carry out fund-raising crimes. For example, some projects carry out related financial management activities in the name of Metaverse Space. According to the current laws of our country, many financial management activities are still illegal in nature. The crime of fundraising in my country’s criminal law is mainly the crime of illegally absorbing public deposits and the crime of fundraising fraud. The distinction between the two is whether the perpetrator has the purpose of illegal possession. The vast majority of financial management projects in the name of Metaverse Space do not conduct business related to Metaverse Space, and are suspected of fundraising fraud. If the criminals use the Metaverse Space in the form of a pyramid selling organization to promote and use it to attract investment, they will also be involved in pyramid selling crimes at the same time.
In the primary development stage of Metaverse technology, the construction of Metaverse space is essentially a process of digitizing the real space, which needs to rely on massive data analysis technology. Whether it is the Metaverse space itself, or the connection carrier between the Metaverse space and the real space, in fact, it is composed of data. Thus, at this stage, the development of the Metaverse may bring data crime risks. At present, the regulation of data crime in my country’s criminal law adopts a multi-path system, that is, according to the characteristics of data, data crime is regulated by different charges scattered in different chapters of the criminal law. According to the broad concept of data crime, data crime includes both traditional computer crime, property crime, crime of infringing citizens’ personal information and other crimes. The relationship of the Metaverse to data includes collecting data, storing data, and utilizing data. Data collection is the source of data creation value. In order to build the Metaverse space faster, creators may illegally obtain data and illegally invade databases. As far as the current criminal law system is concerned, the crimes involved include the crime of illegally invading computer information systems and the crime of illegally obtaining computer information system data.
Judging from the provisions of the Criminal Law, the relationship between computer information systems and data is the relationship between storage and storage, processing and processing. It seems that data acquisition must be done by invading the computer system. However, this traditional model has changed. Today, the illegal acquisition of data does not require destroying the computer information system, and it is completely possible to obtain the desired data without destroying any information system. Therefore, the legal interests violated by the illegal acquisition of data are also diversified. For example, the illegal acquisition of citizens’ personal information can constitute the crime of infringing citizens’ personal information. Data storage is a necessary way to ensure the value created by data. The smooth operation of the Metaverse requires a large amount of data storage. If the data is destroyed, it will of course hinder or even destroy the development of the Metaverse technology and cause serious consequences; at the same time, the data destruction behavior may involve different types depending on the category. type of crime. The use of data determines the direction and result of creating value from data. In the Metaverse, data corresponds to resources, and the interests involved are also diverse. The administrators of the Metaverse are obliged to protect data, and any violation of relevant obligations or regulations may constitute a crime. For example, Paragraph 2 of Article 253-1 of my country’s Criminal Law stipulates: “Anyone who violates the relevant provisions of the state and sells or provides the personal information of citizens obtained in the process of performing duties or providing services to others shall be punished severely in accordance with the provisions of the preceding paragraph. At the same time, if the Metaverse space manager has the identity of a network service provider, in the case of improper management of user information and data, resulting in leakage of user information, it may constitute the crime of refusing to perform the obligation of information network security management. Therefore, the development of the Metaverse is highly dependent on data, and there are certain criminal risks in the process of data collection, storage and utilization.
Metaverse Space Crime in Advanced Stages of Development
In the advanced development stage of Metaverse technology, Metaverse space no longer only pursues the construction of virtual space, but pays more attention to the connection with real space, showing the characteristics of changing from virtual development to full-real development. Compared with the virtual space built by the traditional Internet, the biggest difference in the Metaverse space is the addition of the dimension of full-real interaction. Therefore, when the Metaverse space develops to a certain stage, strengthening the wholeness of reality will become its core goal. At the same time, the criminal risks involved in the Metaverse will also change, and new types of crimes against personal rights may emerge.
In general, the development of science and technology has little impact on crimes against personal rights. The main reason is that crimes against personal rights are usually natural crimes and are not easily affected by changes in time and space and political systems. However, the emergence of Metaverse technology is obviously revolutionary. It tries to break the limitation of physical space and build a “twin” in which real space and virtual space coexist. Of course, it will affect the whole social life form in the later stage of development. Therefore, the establishment and structure of natural criminals in the criminal law will also be affected. According to news reports, a woman recently reported experiencing “sexual harassment” on the VR virtual social platform Horizon Worlds. A stranger kept touching her virtual character in the square, making her feel uncomfortable. In fact, incidents of “sexual harassment” often occur in cyberspace. However, since the simulation of the human body cannot yet be realized in cyberspace, the traditional crime of violating personal rights cannot be established in the case of being separated from the human body. With the continuous development of the Metaverse space, the fullness of the Metaverse space has been continuously improved, especially with the continuous enhancement of the five senses and experiences of the human body in the Metaverse space. At that time, the virtuality of virtual characters will decline, and the fullness of reality will rise, and people can realize the “replication” of their own bodies through the Metaverse space. The behavior similar to “touching” the virtual character will also make the body of the “touched” person have a more real feeling. In this case, of course, it will lead to the actual occurrence of a certain degree of violation of personal rights.
In addition to this, the criminal risks that existed in the primary development stage of Metaverse technology will continue to exist in the advanced development stage of Metaverse technology. However, with the improvement of the risk prevention mechanism in the Metaverse, the proportion of crimes committed in the Metaverse, such as fraud, fundraising, and pyramid schemes, will decline to a certain extent. These crime types will no longer be the mainstream of Metaverse crime in advanced stages of development. At the same time, since the Metaverse still relies on data and its related technologies in the advanced development stage, data crime will become a common criminal risk for the Metaverse in the primary and advanced development stages.
2. Comparison and distinction between crime in Metaverse space and existing crime types
When the concept of Metaverse space appeared, it was suggested that Metaverse space was no different from today’s virtual space, and that legal research on the Metaverse was “a new round of academic bubbles”. Why Dedicated Research on Metaverse Space Crime? What is the difference between Metaverse crime and other existing crime types such as cybercrime? These are the questions that must be answered before we begin our discussion of space crime in the Metaverse. The author believes that the discussion of crime in the Metaverse is not the so-called “academic reverie”, nor is it a “new round of academic bubbles”, this is because there are obvious differences between crimes in the Metaverse and other existing crimes. distinguish. The author will show the characteristics of Metaverse crime by comparing two types of typical science and technology crimes: Metaverse crime, cyber crime and artificial intelligence crime.
First, compared to cybercrime, Metaverse crime is all-real. With the rapid development of network technology, cybercrime has also become an important topic in the discussion of criminal law theory. Compared with traditional crimes, cybercrime has changed in the elements of crime, social harm and crime patterns. The emergence of these variations has led to many obstacles in the identification of cybercrime. The development of cybercrime in the middle and later stages is no longer limited to the use of the Internet as the object or tool of crime, but the “cyberspaceization” of crime has begun to appear, which has led to intense discussions on whether cyberspace can directly apply to the real space conviction and sentencing model. For example, whether the crime of picking quarrels and provoking trouble in public places can be applied to cyberspace, etc. In recent years, discussions on the industrialization, neutralization and chaining of cybercrime have been in full swing. These discussions about changes in cybercrime actually stem from the virtuality of cyberspace. The Metaverse space also has the virtuality that is different from the real space, which makes the Metaverse space crime show similar characteristics to the cybercrime, for example, some criminal acts can break through the space restrictions and so on.Some crimes can occur both in cyberspace and in the Metaverse, such as insults, defamation, etc.
Although the development process of cybercrime also shows the characteristics of spatialization and strengthening of reality, such strengthening of reality often does not make a “qualitative” change in cybercrime. The enhancement of the reality of cyberspace is mainly by increasing the sense of picture and practicability inside the space, for example, improving the interface and increasing the functions of payment applications. The enhancement of reality in the Metaverse space is not limited to the interior of the space, but uses various technologies to enhance the connection between the space and the outside of the space, breaking the absolute barrier between the artificially created space and the real space. This strengthening of reality will gradually reach the level of full truth. For example, general online games enable users to obtain a higher-definition and more realistic gaming experience through exquisite page settings. However, games in the Metaverse space can achieve an immersive experience for users through full-real technology. The Metaverse space encourages users to engage in immersive social interaction through physical engagement and gain an interactive and emotional experience. Because the technology is embedded in the body, users of the Metaverse can feel the stimulation of the specific scene, and can give corresponding feedback through body movements. While the Metaverse realizes full truth, Metaverse crimes can use full truth technology to carry out behaviors that cannot be carried out in cyberspace, especially crimes that require the cooperation of five senses, which can include crimes that violate personal rights, or crimes that violate personal rights. Other crimes where bodily action is necessary may be included.
It can be seen from this that it is precisely because the technical characteristics of the Metaverse space endow some Metaverse crimes with full authenticity, so we cannot simply think that Metaverse crimes are “upgraded” cybercrimes, but should strengthen our understanding of the Metaverse. The specificity of space and its impact on crime are specifically studied.
Second, compared with AI crimes, Metaverse crimes are special in scope and origin. Artificial intelligence crime is a new type of crime that emerges with the development of artificial intelligence technology. The author took the lead in proposing that artificial intelligence is the “intelligence” that human beings have created, and that human “intelligence” also includes the content of consciousness and will, that is, the ability to recognize and control one’s own behavior.According to the level of development of artificial intelligence technology, we divide the era of artificial intelligence into three different eras: general artificial intelligence, weak artificial intelligence and strong artificial intelligence. It is precisely because artificial intelligence products have more or less consciousness and will, so artificial intelligence technology will affect, transfer or even change the determination of criminal offenses and the assumption of criminal responsibility. In the era of weak artificial intelligence, because weak artificial intelligence products have deep learning capabilities, their developers or users may be liable for criminal negligence; strong artificial intelligence products are subject to disputes. The current discussion of AI crime has both concerns about real events, such as the study of criminal liability for traffic accidents caused by intelligent networked vehicles; and concerns about future development, such as the independent decision of intelligent robots who are out of program control who will be responsible for harmful behaviors A study of criminal responsibility. These discussions on artificial intelligence crimes will, to a certain extent, play a guiding or warning role in the development of the artificial intelligence industry. Metaverse crime and artificial intelligence crime are similar in that they are both “products” of emerging technologies, and they are the focus of criminal law theory on the criminal risks that may be brought about by future technological development. In other words, it is purely because of the “novelty” of these technologies and the potential for criminal risks that we put them together for a comparative study. However, there are differences between Metaverse crime and artificial intelligence crime, whether in the scope of existence or in the source of particularity.
First, in the scope of existence , artificial intelligence technology plays an important role in the development of Metaverse technology; but due to the limitations of Metaverse space applications, the main types of artificial intelligence crimes (such as crimes involving intelligent networked vehicles, Crimes involving the “Da Vinci” surgical robot, etc.) are currently difficult to appear in the Metaverse. At the same time, the development of Metaverse technology requires the application of other scientific technologies such as holographic technology, interactive technology and intelligent algorithms in addition to artificial intelligence technology, so as to realize the ultimate form of “virtual life”. Artificial intelligence technology has helped humans achieve breakthroughs in a certain field, such as medical field, driving field, etc.However, Metaverse technology not only hopes to achieve a breakthrough in a certain field, but also is committed to a breakthrough in the limitations of real space, so as to achieve a breakthrough in all aspects of human value. Therefore, both AI crimes and Metaverse crimes are likely to challenge traditional criminal law theories, the only difference being the scope of the two. However, there may be a certain relationship between artificial intelligence crimes and Metaverse crimes, that is, artificial intelligence crimes may also occur in the Metaverse.
Second, in terms of the source of particularity, as mentioned above, the author believes that the particularity of artificial intelligence crimes is due to the degree of “intelligence” possessed by humans whose artificial intelligence technology is constantly deepening, which leads to artificial intelligence products in the era of weak artificial intelligence. Ability to analyze and make decisions “autonomously” under program control. This feature of artificial intelligence products makes artificial intelligence crimes of course different from ordinary crimes in terms of responsibility sharing. Because of this, we should follow the “discount” distribution principle when determining the relevant criminal liability of weak AI products, that is, according to the intelligence level of the product, the criminal liability of each relevant subject should be divided according to a certain proportion; When determining the criminal responsibility of strong artificial intelligence products, it is necessary to consider whether the behavior is made according to the design of the program, so as to accurately identify the subject of criminal responsibility. Whether it is the determination of criminal liability for weak artificial intelligence products or strong artificial intelligence products, the source of its particularity is the “intelligence” that artificial intelligence technology has created or has continuously deepened. Different from the particularity of artificial intelligence crime originating from “intelligent” technology, the particularity source of Metaverse crime is the simulation technology of real space. Simulation technology endows the Metaverse with a relatively independent space. The interpretation and conclusion of the same criminal behavior that occurs in different spaces may be different. For example, the criminal law determination of “space” indecent behavior is controversial. In this regard, the author believes that our research on crime in Metaverse space should focus on the particularity conferred by simulation technology.
By comparison, it can be seen that although Metaverse crime is similar to new crime types such as cyber crime and artificial intelligence crime, Metaverse crime also shows its unique characteristics, including full authenticity and specific space. range etc. The emergence of these characteristics may have a certain degree of impact on the existing criminal law theories, so there is a need for special research on crimes in the Metaverse, rather than the “academic bubble” brought about by the so-called “academic reverie”.
3. The Impact of Metaverse Space Crime on Traditional Criminal Law Theory
Different types of criminal risks may exist for Metaverse technologies at different stages of development. Just as cyberspace is not an “outlaw space”, so is the Metaverse. For the criminal risks brought about by the development of Metaverse technology, the criminal law should design or take certain measures to prevent them. Metaverse crimes have characteristics that are different from the other types of crimes mentioned above. These characteristics may have an impact on the existing criminal law theories, and may lead to a “vacuum zone” or even a “crisis” in the criminal law’s regulation of serious social harm that occurs in the Metaverse. “.
The Impact of Metaverse Space Crime on the Inherent Form of Legal Interest
Legal interest in criminal law theory refers to the interests protected by criminal law that are infringed by criminal acts.Legal interest is of great significance to criminal law legislation and justice. In terms of legislation, the legal interest-oriented view of legislation holds that legal interest has guiding significance for initiating legislation and restricting legislation. The traditional theory also believes that legal interest is the classification standard of various specific crimes in my country’s criminal law. Judicially, the clarification of legal interests has a guiding role in the interpretation of criminal law, and can help to correctly understand and apply criminal law norms. The identification of crimes in the Metaverse is also inseparable from the confirmation of legal interests. The Metaverse space is the product of the deep connection between virtual space and real space. This characteristic has changed the inherent form of legal interest in the Metaverse space, which will inevitably lead to the determination of criminal responsibility or confusion in the identification of crimes.
According to the different subjects of legal interests, legal interests can generally be divided into individual legal interests and collective legal interests. Personal legal interests refer to the personal interests of citizens, including the legal interests of citizens’ life, property, and freedom. Collective legal interests, also known as super-individual legal interests, refer to the public interests shared by members of society, including national legal interests and social legal interests. The distinction between individual legal interests and collective legal interests plays an important role in clarifying and limiting the scope of punishment in criminal law. At the same time, individual legal interests and collective legal interests may undergo different changes in the Metaverse.
First, some forms of personal legal interests may be extended. Metaverse technology endows human beings with a digital identity. Having a digital identity means that humans can realize various activities in the Metaverse space through digital roles without the participation of the human body. In this way, the personal interests of the Metaverse are no longer entirely required or highly dependent on the entity to exist. The traditional personal legal benefits exist on the basis of the human body. For example, the legal benefits of life and physical health cannot be separated from the human body itself. It can be said that without the human body, many individual legal interests cease to exist. However, one of the main purposes for the emergence of the Metaverse space is to get rid of the limitations of the human body and realize the expansion of the human body in the digital space. Will this expansion lead to an extension of the form of personal legal interests? Berkeley’s classic saying “to be is to be perceived” proposes the separation of matter and existence from the cognitive level. In the Metaverse, the connection between the digital role and the human body is the key to determining whether the personal legal interests can be extended. The fundamental reason why personal legal interests are highly dependent on the ontology of the human body is that the content of many personal legal interests can only exist in the form of connection with the ontology of the human body. For example, the legal benefit of life exists only when life exists.If this high degree of dependence cannot be reflected in digital roles, or if digital roles cannot reflect the basic content of personal legal interests, then personal legal interests will not be extended due to the emergence of digital roles. For example, digital characters do not have life, so the benefits of life cannot exist in the Metaverse. However, some of the content of personal legal interests may be reflected in digital roles due to the emergence of related technologies, and the most typical representative is sensory experience.
Roblox, the company that created the Metaverse game platform, once proposed that the Metaverse space has eight characteristics: identity, friends, immersion, low latency, diversity, anywhere, economy and civilization. These eight features have become the focus of the buzz about the Metaverse. Among them, many features can already be reflected in cyberspace, but features such as immersion can only be realized or further improved through the construction technology of Metaverse space. Metaverse space can make the body feel the stimulation of the scene through sensors connected to different parts of the body and terminal facilities such as VR, and at the same time, the movements of the body can also be fed back into the scene to realize information exchange. The author believes that when the digital characters in the Metaverse space can obtain human sensory experience, some personal legal interests can be extended in form, that is, infringing the interests of individuals corresponding to digital characters can become a form of infringing on personal legal interests. For example, in the aforementioned case of “sexual harassment” that occurred on the VR virtual social platform, if the Metaverse space has achieved a deep connection between the digital character and the human body, then the violation of the digital character can be fully reflected on the human body, that is, the human body itself can Feel the encroachment on your digital role. At this time, this kind of violation has reached a certain level of severity, and it may completely constitute relevant crimes such as forced indecency and insult.
Second, the content of some collective legal interests may be expanded. In addition to individual legal interests, collective legal interests are also an important part of our criminal law protection. The necessity of the criminal law to protect the collective legal interests lies in safeguarding people’s basic freedom by maintaining order. Individual freedom cannot exist alone. It relies on collective legal interests. The protection of collective legal interests realizes greater freedom beyond independent individual freedom. Although collective legal interests are not a simple collection of individual legal interests, the infringement of collective legal interests will ultimately affect individual legal interests. Therefore, the protection of collective legal interests can be considered as a reflection of the preposition of the protection of individual legal interests; at the same time, the protection of collective legal interests is also considered to be an effective tool to deal with technological development and social risks. Modern society faces various risks, and the emergence of new social risks will cause corresponding changes in the content of collective legal interests. For example, in response to the emergence and development of cybercrimes, the Criminal Law has added crimes such as the crime of assisting information network criminal activities and the crime of refusing to perform information network security management obligations, and protects the network management order as a social management order. Metaverse technology and Metaverse space may form a unique rule and order structure during the development process, and this rule and order management may be managed and regulated by specialized technology in the future. However, if this management mechanism is disrupted, it will cause a double destruction of the Metaverse and reality. Therefore, the management order and security of the Metaverse also need to be protected by the necessary criminal law, and this content is not directly reflected in the criminal law at present. In addition, Metaverse is based on underlying technologies such as blockchain, smart contracts and chain storage, breaking the traditional governance model. If this governance model eventually forms a diffuse power governance model, it will threaten the social management order in the real space and needs to be controlled. Therefore, when the Metaverse space penetrates into social life and forms a close interactive connection with the real space, the content of collective legal interests represented by the social management order needs to be further expanded to cover the management order and security of the Metaverse space.
The impact of Metaverse crime on criminal behavior
As mentioned above, the Metaverse space has a virtuality that is different from the real space, and at the same time, it has a full-truth that is different from other virtual spaces such as the Internet. These characteristics will bring about new changes in the way of criminal behavior in the Metaverse, and it is entirely possible to cause an impact on the identification of traditional ways of criminal behavior. It should be admitted that many criminal behaviors have formed relatively fixed forms in traditional criminal law theory, but may present new changes in the Metaverse.
On the one hand, the criminal behavior of fraud may change. According to traditional criminal law theory, fraud refers to the behavior that the perpetrator adopts the method of fabricating facts and concealing the truth, so that the deceived person has a wrong understanding and then delivers the property. The existence of misperceptions is crucial to the establishment of fraudulent practices. In general, false perceptions of fraud are directed at the whole or all of the facts.However, the author believes that judgments about misperceptions may change due to changes in the social environment and the emergence of emerging technologies. For example, as artificial intelligence robots begin to replace humans in handling some affairs, whether artificial intelligence robots can fall into misunderstandings has become a hot topic in criminal law theory discussions. Some scholars believe that machines cannot be “deceived”, and only natural people can fall into misunderstandings. This view ignores the characteristics of different social functions undertaken by artificial intelligence robots in different social environments due to their different “intelligence”. Artificial intelligence robots in modern society can be “deceived”. Therefore, after the machine becomes intelligent, the misunderstanding caused by the fraud should include the judgment error of the artificial intelligence robot. For example, the ATM machine mistakenly believes that the perpetrator who uses another person’s account to transfer money is wrong because the perpetrator has entered the correct account password. In the case of the owner of the account who “voluntarily and voluntarily” pays the perpetrator money, the perpetrator is determined to constitute the crime of credit card fraud in my country’s criminal legislation and justice.
The author believes that the emergence of the Metaverse space may once again change the behavior of fraud crimes.
For one, in the absence of specific clear instructions, the digital role in the Metaverse can be misunderstood. The above-mentioned artificial intelligence robots are “deceived” based on specific and clear instructions. For example, in the case of the above-mentioned actors using other people’s account passwords to withdraw money at the ATM machine, the “deception” of the ATM machine is to obtain clear instructions for withdrawal operations. However, in the Metaverse, in order to maximize the scope and capabilities of digital characters, digital characters can selectively “act” within the framework allowed by algorithms, rather than following specific, completely clear instructions to operate. For example, digital characters in the Metaverse can have a certain degree of autonomy when purchasing goods, that is, they can choose within a certain range, so as to expand the scope of activities of digital characters in terms of consumption. At this time, the “action” of the digital character is not unique, but is controlled by the algorithm, and the “deception” of the digital character is also completed by the algorithm. Therefore, in the Metaverse space, fraud against digital characters is essentially an algorithm-to-algorithm “deception”, which is very different from traditional fraudulent behaviors.
Second, in the case of Metaverse space, the understanding of “reality” may be different from that of real space. As we all know, “deception” is the tampering or concealment of “truth”. Therefore, the understanding of “truth” will of course affect or even decide the determination of “deception”. Fictional facts and concealment of the truth in fraudulent crimes are the cover-up and change of the “real” situation, and are an important feature that distinguishes them from other crimes against property. Although the purpose of constructing the Metaverse space is to achieve “full truth” as much as possible, there is a difference between “full truth” and “reality”, and the Metaverse space still has virtual characteristics different from the real space. Judgment and real space are not exactly the same, especially the “real” considered by digital characters and the “real” considered by their corresponding human ontology may be misaligned due to the participation of technology. At this time, whether it constitutes “deception” and the object of “deception” may change, which will affect the judgment of “deception” in fraud crimes.
On the other hand, the patterns of criminal behavior in the physical contact category may change.The crime of physical contact refers to a type of crime in which the perpetrator needs to make physical contact with the victim under normal circumstances. The physical contact here generally refers to the requirements for the conduct of the crime, such as rape, forced indecency, insult, child molestation, kidnapping, etc. in the crime of violating personal rights. It should be noted that although physical contact between people is actually impossible in cyberspace, there are now expanded explanations for traditional physical contact crimes in the identification of cybercrimes. For example, the Guiding Cases published by the Supreme People’s Procuratorate found that in the online environment, for the purpose of sexual stimulation, although there is no direct physical contact with the victimized child, the behavior of requiring the child to transmit nude photos can be identified as the crime of child molestation. In theory, there is also a view that online obscenity is equivalent to offline obscenity, and obscenity in the air should be punished. It can be seen that in the virtual space, the crime of physical contact is not completely without room for application. Compared with other virtual spaces, the Metaverse space is full of authenticity, and its value is reflected in the integration with the real world, so that the Metaverse space always serves the needs of the real economy, society and governance. Therefore, Metaverse space can not only provide a digital communication and communication platform like cyberspace, but Metaverse space also needs to apply a multi-sensory simulation system including tactile technology to help humans perceive the world in Metaverse space and obtain real experience . In this way, a new type of contact can take place in the Metaverse, which is embodied in the fact that users can obtain a simulated contact experience through tactile technology, that is, form an indirect physical contact. In other words, the contact behavior has been formally expanded in the Metaverse, and this change will lead to the further expansion of the criminal behavior of physical contact in the Metaverse. The occurrence of the aforementioned “sexual harassment” incident in the space indicates that the new contact method in the Metaverse space may completely infringe the relevant legal interests, that is, the new contact method can also harm the victim’s sense of sexual shame. It is worth noting that even if the Metaverse uses tactile technology to develop new contact methods, not all crimes involving physical contact can be extended to the Metaverse. For example, the crime of rape will not appear in the Metaverse due to the emergence of new contact methods, because the crime of rape protects the specific sexual rights of women, and the infringement of this specific sexual rights seems to be temporarily impossible to achieve only through simulated touch technology. . Therefore, whether a crime involving physical contact can occur in the Metaverse due to tactile technology not only depends on the development of tactile technology in the Metaverse, especially the degree of tactile simulation, but also depends on the protection of the crime. Whether legal benefits can be
4. The Criminal Law Regulation Path of Metaverse Space Crime
In the face of various criminal risks in the Metaverse, criminal law theory should actively study and think about the regulation path of crimes in the Metaverse. In fact, different types of Metaverse crimes have different characteristics and need to be divided and conquered through targeted regulatory thinking.
First of all, crimes committed in the name of the Metaverse are identified as ordinary crimes. It should be noted that many Metaverse crimes have used the emerging concept of “Metaverse”, especially in the primary development stage of Metaverse technology, a series of crimes of fraud, fundraising, and pyramid selling belong to the Metaverse. crime in name. This type of crime mainly utilizes the objective situation that the public does not know or understand the Metaverse space, and does not really use the key technologies of the Metaverse space. It is a kind of “pseudo-Metaverse” crime. In February 2022, the China Banking and Insurance Regulatory Commission issued the “Risk Warning on Preventing Illegal Fund Raising in the Name of “Metaverse”, which pointed out that criminals used the name of “Metaverse” to fabricate false Metaverse investment projects and use the name of “Metaverse”. Block chain game fraud, malicious speculation on Metaverse real estate, and disguised Metaverse virtual currency for illegal profit-making. These actions are all crimes committed under the guise of the Metaverse. Although such crimes are related to the Metaverse, the relevant provisions of the current criminal law are sufficient to regulate such behaviors. There is no need to add new crimes in criminal legislation, and in criminal judicial practice, it is only necessary to identify them as general crimes. The reason is:
On the one hand, the role of the concept of the Metaverse in such crimes is only a criminal tool. For fraud, fundraising, and pyramid selling crimes committed in the name of Metaverse, the concept of Metaverse is a criminal tool that helps criminals gain the trust of others. In general, changes in criminal instruments will not or rarely lead to changes in the identification of the nature of criminal behavior. For example, there is no distinction between killing with a knife and killing with a stick in the determination of the nature of the crime, because there is only intentional homicide in the criminal law, but there is no “gun homicide” and “stick homicide”. There is no distinction between defrauding in the name of the Metaverse and defrauding in other names. Some people may think that under the current market situation, the amount of fundraising or fraud attracted by the concept of Metaverse space may be more than the amount of other fundraising and fraud crimes. However, the author believes that the amount of crime will not affect the determination of the nature of the crime, that is, we still only need to characterize the behavior of the perpetrator according to the crime of fund-raising fraud or fraud, and conduct the investigation according to the amount corresponding to the actual fraud of the perpetrator. penalty. In February 2022, the Supreme People’s Court revised the “Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund Raising”, including the determination that “the illegal absorption of funds by means of online lending, investment in shares, virtual currency transactions, etc.” “Illegal absorption of funds by means of entrusted wealth management, financial leasing, etc.”, “illegal absorption of funds by means of providing ‘elderly care services’, investing in ‘elderly care projects’, and selling ‘elderly products'” can all be classified as illegally absorbing public deposits. This content actually reflects that the name of the fund-raising crime should not and will not affect the determination of the crime, that is, the change of the name of the fund-raising cannot affect the determination of the nature of illegally absorbing public deposits. The same is true for crimes committed in the name of Metaverse. Fraud, fundraising, and pyramid selling crimes committed in the name of Metaverse are no different in nature from other fraud, fundraising, and pyramid selling crimes. There should be no difference in the characterization of traditional crimes.
On the other hand, the intervention of the concept of Metaverse space will not change the degree of legal infringement of such crimes. After some criminal acts moved from offline to online, their social harm has undergone a “quantitative change”, for example, the dissemination of illegal and criminal information in cyberspace. This is because cyberspace provides such information dissemination-type criminal acts with a dissemination aid that offline space does not have. However, for crimes committed under the guise of the Metaverse, the help provided by the Metaverse only comes from the concept itself, and other concepts have the same nature and the same strength. Therefore, the intervention of the concept of Metaverse space has not and will not change the extent to which criminal acts such as fraud, fundraising, pyramid selling and other criminal acts committed in the name of Metaverse space in the primary development stage of Metaverse technology have infringed on legal interests. In practice, no special identification is required, and only the conviction and sentencing of the general crime is required. Although crimes committed under the guise of the Metaverse can be identified as general crimes, it does not mean that the research content of such crimes is worthless and meaningful. Including such crimes into the discussion scope of Metaverse crimes can help to recognize the characteristics and nature of crimes such as fraud, fundraising, and pyramid schemes that have been packaged in a specific way, which is of strong suggestive significance. At the same time, distinguishing such crimes from other Metaverse crimes that may have an impact on existing criminal law theories can enable more refined research on Metaverse crimes.
Secondly, properly use the principle of objective interpretation to identify the crime in the Metaverse. The author believes that how to scientifically and reasonably identify crimes in the Metaverse actually involves the choice of the interpretive position of criminal law. Especially for crimes that occurred in the advanced development stage of Metaverse technology, different conclusions may be drawn due to the choice of explanatory standpoint. There are three main viewpoints in the choice of criminal law interpretation position in criminal law theory: subjective interpretation, objective interpretation and compromise theory.
The subjective interpretation holds that the interpretation of criminal law should focus on the original intention of the legislation, that is, the intention of the legislator when making the law. The subjective interpretation says that the restrictive effect of the original intention of the legislation on the interpretation of the criminal law will not be changed with the change of the social environment. The objective interpretation is that the meaning of the law changes with the times, so the interpretation of the law also varies with the times.
The objective interpretation is that in order to make the interpretation result in line with the development and changes of the social environment, it is recognized that the interpretation of the criminal law can be different from the interpretation at the time of the legislation. The compromise theory holds that whether the criminal law should be interpreted subjectively or objectively should be determined according to specific circumstances. There are also different views within the compromise theory. For example, some scholars advocate the “subjective and objective interpretation”, that is, in the application of the objective interpretation, the requirement of “the interpretation of the original meaning of the language of the criminal law provisions” in the subjective interpretation is implemented. Some scholars have made a broad understanding of the original intention of legislation, and believe that the original intention of legislation is only “the overall description of the normative goal”, and rigid subjective interpretation cannot be adopted in the specific interpretation process.
The author believes that the traditional subjective interpretation is difficult to adapt to the changes brought about by the development of science and technology in social life, and sticking to the traditional subjective interpretation is not conducive to the basic function of the criminal law in social security in the age of science and technology.However, legislation must have original intentions, and the original intentions of legislation should be respected and cannot be changed casually, otherwise it will be a departure from the principle of legalization of crimes and punishments.In this regard, the content of the subjective interpretation should not be completely abandoned, and the content of respecting the original intention of the legislation advocated in the subjective interpretation should be retained. When the original intention of the legislation is relatively clear, the criminal law should be interpreted according to the original intention of the legislation. However, “time does not stand still. At the time of the legislation, what acts in the way the legislator expects may act in a way that the legislator does not expect or which he originally intended.” In many cases, the original intention of legislation cannot be detected, and legislators cannot predict future social development and changes. In this case, a conditional objective interpretation should be adopted. In the absence of amendments to the legislation, lawmakers cannot predict the new types of criminal risks that the rapid development of the Metaverse will bring. At this time, an objective explanation should be made according to the specific circumstances of the Metaverse space development and criminal behavior. However, this objective interpretation is conditional, not unlimited or depends only on the subjective attitude of the interpreter. The objective interpretation of crimes in the Metaverse needs to be limited by the text of the criminal law itself, and it is also necessary to use other theoretical interpretation methods to draw reasonable interpretation conclusions. Specifically, the objective interpretation of the crime in the Metaverse mainly includes the following two aspects.
First, include the expanded and extended legal interest forms or contents in the Metaverse into the protection scope of criminal law. As mentioned above, crimes in the Metaverse will likely have an impact on the inherent form of legal interests, and both individual legal interests and collective legal interests will undergo certain changes in the Metaverse. Among them, the form of individual legal interests may be extended, and the content of collective legal interests may be expanded. At this time, the expanded and extended legal interest form or content should also be included in the scope of protection of the criminal law. For example, in the case where the digital character and the human body are highly connected, and the human body can obtain the tactile experience of the digital character, it is necessary to include the sexual shame of the digital character corresponding to the human body into the protection scope of the criminal law. For another example, after the Metaverse technology has developed into a specific form, it should be considered to understand the management order of the Metaverse space as an integral part of the social management order, and then bring it into the protection scope of the criminal law, otherwise the Metaverse space will become criminals. Relevant criminal acts and disguised “extrajudicial space” and even “criminal hotbeds” to escape the punishment of criminal law.
Second, expand the explanation of some criminal behaviors. Expanded interpretation in criminal law refers to expanded interpretation within the scope of “possible semantics” stipulated in criminal law. The scope of “possible semantics” here generally refers to the semantic range corresponding to the provisions of criminal law. Interpretation within the scope of the “possible semantics” of the provisions of the criminal law means that there is no obvious semantic difference between the conclusion of the interpretation and the provisions of the criminal law. In the case of increasing social risks, the judgment of objective interpretation on the development and change of the social environment tends to make most of the interpretation conclusions drawn through objective interpretation tend to expand. Therefore, many objective interpretation conclusions are suspected of breaking through the legal principle of crime and punishment, that is, breaking through the scope of “possible semantics” stipulated in the criminal law. It should be admitted that under the limitation of literary and theoretical interpretation, many criminal behaviors already have the basic connotation of consensus in the real space, but with the emergence of the Metaverse, the criminal law interpretation of these criminal behaviors should no longer rest on their laurels, otherwise will turn the Metaverse into a breeding ground for criminals evading regulation. In fact, many criminal behaviors have mutated in the Internet age, so in the more advanced Metaverse space, the necessary objective interpretation of criminal behaviors should be more in line with the category acceptable to the general public. For example, in the Internet age, air obscenity has been interpreted as a form of obscene behavior.There will also be non-contact obscenity in the Metaverse. Although such obscene behavior is different from the obscene behavior in traditional theories, in view of the fact that the tactile technology used in the Metaverse space can achieve the same feeling of non-direct contact and direct contact with the human body, such non-direct contact obscene behavior should be explained. Indecent acts in criminal law.
The superiority of objective interpretation lies in that while ensuring the stability of the criminal law, it can give play to the function of the criminal law to protect the society to a greater extent. For legislators, it is inevitable that the legislation does not provide for criminal risks that have not yet appeared at that time, and we cannot deduce legislators’ attitudes towards risk prevention. In other words, we cannot simply believe that the regulation of this new type of crime does not conform to the original intent of the legislation because the legislator has not recognized that the behavior of creating such a risk may constitute a crime. Under the circumstance that the original meaning of the legislation is unclear, the interpretation based on the objectively expressed meaning of the criminal law not only conforms to the basic requirements of statutory crime and punishment, but also can obtain reasonable interpretation results according to changes in the social environment. As mentioned above, the Metaverse is not an “extra-law place”, and the Metaverse cannot be turned into a gray area for crimes because the current criminal law does not mention the Metaverse or the relevant legislation is unclear.In essence, objective interpretation can only represent a choice of interpretive standpoint, and it cannot be said that an exact interpretation conclusion can be directly drawn through objective interpretation. When carrying out a conditional and objective explanation of the crimes in the Metaverse, it is necessary to use various explanation methods in order to obtain a scientific and appropriate explanation conclusion. Therefore, there is no need to be too hostile to objective explanations in the context of the Metaverse, and blindly think that the conclusions of objective explanations are arbitrary and arbitrary. In fact, if necessary, a conditional and objective interpretation of crimes in the Metaverse not only meets the practical needs of criminal law regulation in high-tech development, but also reflects the dynamic value of criminal law provisions.
It is undeniable that the current theoretical discussion of the Metaverse space is influenced to a certain extent by capital operations and media reports, but the Metaverse space itself exhibits characteristics that are different from both real space and cyberspace. Brings a new type of criminal risk. Regardless of whether the Metaverse can eventually form the desired social form, it should not be divorced from legal regulations and related administrative orders. The Metaverse space can only break through some of the physical limitations, but not the legal constraints; otherwise, it will not be allowed by the social life and management order. The development of Metaverse technology may also have an impact on the traditional criminal identification model while changing the social way of life. This impact may not be obvious in the primary development stage of Metaverse technology, that is, crimes such as fraud and fundraising that occur in the primary development stage usually only need to be identified as general crimes. Therefore, in theory, many people would think that there is no need to conduct special research on crimes in the Metaverse, or even dislike research in this field.
However, in the advanced development stage of Metaverse technology, through various cutting-edge technologies of augmented reality, Metaverse crime can realize changes in the form and content of legal benefits and expand the way of criminal behavior. At this time, how to regulate this new type of crime is a problem that must be considered and discussed in criminal law theory. In fact, in the face of the emergence and change of new technologies, criminal law theory has not been sitting on the sidelines. For example, the development of artificial intelligence technology has promoted the research on artificial intelligence crime, and the development of network technology has promoted the research on cybercrime.Facing the constant mutation and escalation of AI crimes and cyber crimes, criminal law theory continues to provide coping strategies and paths, becoming an effective weapon to combat AI crimes and cyber crimes. It can be considered that the in-depth research on artificial intelligence crime and cybercrime in criminal law theory has made important contributions to the production, application and network stability of artificial intelligence, ensuring that artificial intelligence technology and network technology can bring benefits to human society and also Maintain the basic security and stability of society.
In recent years, the emergence of various emerging technologies such as big data and cloud computing has also enabled criminal law theory to gradually begin to face up to the changes in criminal risks caused by various emerging high-tech, and actively explore the methods, strategies and paths of criminal law. For example, research on the allocation of criminal responsibility for autonomous driving accidents can objectively help solve the difficulty of judicial identification of such accidents. In the same way, for the development of the Metaverse, the discussion of criminal law theory is not and should not be an “academic bubble”, and the necessary criminal law theory discussion will be conducive to the healthy development of Metaverse technology in the future. This is not an exaggeration and unfounded worry about the negative effects of the Metaverse, but a reflection of the thinking of preventing problems before they happen.
Posted by:CoinYuppie，Reprinted with attribution to:https://coinyuppie.com/liu-xianquan-east-china-university-of-political-science-and-law-new-ideas-for-criminal-law-regulation-of-metaverse-space-crimes/
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