As a means of game promotion, "game trust" often induces players to recharge in the form of love and dating, game top lists, etc., and has formed a gray industry chain.
On the release of the China Consumers Association"Analysis of Complaints Accepted by the National Consumer Association in 2022".It shows that among the 18,075 online game complaints it accepted, the main content was the inducement of recharge consumption by game operators, such as the probability of winning the lottery with false props and cards, exaggerating the effect of the event, and inducing consumers to recharge.
Network operators engaged in commercial activities need to use revenue as the basis for normal operation and development, and it is normal business practice to promote games and encourage players to recharge games. However, the "game trust" is different, and the "game trust" is in an ambiguous area in the determination of its legal nature.
This article will focus on nine judgments related to "game trusts" and analyze the legal issues in the gray industry of "game trusts".
One"Game Trust" civil cases and their adjudication opinions
The author limited the type of judgment document to "judgment" to "judgment" with "game trust" as the keyword of the full text and "network service contract dispute" as the cause of action, and searched on the "Wolters Kluwer" platform to obtain a total of 2 civil judgments, and now summarizes the cases and their adjudication opinions as follows (see Table 1):
Number
Case name
Case number
Courts
The result of the court's decision
Shen Yunjun and Shanghai Yiyou Network Information Technology *** Network.
Service contract disputes.
2019) Hu 0114 Min Chu No. 14739.
Shanghai Jiading District People's Court.
There was no civil fraud on the part of the defendant.
Li Guoling, Hunan Bubble Interactive Entertainment *** and other network service contract disputes.
2021) Xiang 0112 Min Chu No. 5568.
People's Court of Wangcheng District, Changsha City, Hunan Province.
The defendant did not fabricate facts or conceal the truth.
Table 1 Civil legal disputes involving "game trust".
Combined with the content of the above table, we can find that the legal issues in the civil field are mainly manifested in the gray industry of "game trust".Disputes over network service contractsThe plaintiff argued that the game operator, as the defendant, had committed civil fraud in the process of providing network services, causing it to misunderstand and recharge the game.
The constitutive elements of civil fraud are:The perpetrator subjectively has the intent to defraud, and has carried out acts of fabricating facts or concealing the truth, and the defrauded person has a misunderstanding due to the fraudulent act and is an expression of intentWhen the court analyzes the constituent elements in judicial practice, it usually focuses on the following two points:
First,Whether the evidence provided by the game user as a plaintiff is sufficient to prove the existence of fraud. According to the provisions of the Civil Procedure Law, the plaintiff needs to bear the burden of proof that the game company has committed fraud, and if it fails to meet the burden of proof, it will bear adverse consequences.
For example, in the case of "Shen Yunjun v. Shanghai Yiyou Network Information Technology *** Network Service Contract Dispute", the court made it clear that "the plaintiff, as the prosecution, should provide preliminary evidence for the defendant's fraudulent behavior." ”
Another example is the case of "Li Guoling, Hunan Bubble Interactive Entertainment*** and other network service contract disputes", the court held that "but judging from the content of the chat, it is a normal exchange and complaint between gamers, which cannot achieve the plaintiff's purpose of proof, and Li Guoling did not provide sufficient evidence to substantiate this, and should bear the adverse consequences of failing to provide evidence, and the female player is "empty" (WeChat name "丿star|".On the issue of whether Latte Xiaoxin was employed by Bubble Cool, Li Guoling was unable to confirm the true identity of the player until the trial of this case, and his statement was only based on personal speculation and suspicion, and he did not submit evidence to this court to prove it, so it could not achieve the purpose of proof, and this court did not accept Li Guoling's above claim. ”
Although the standard of proof of evidence in civil litigation does not need to reach the level of "beyond reasonable doubt", it is still very difficult for game users to prove the existence of civil fraud. Game operators and game users are legally equal subjects linked together based on network service contracts, but the game operator's control over system settings and other content makes them in a substantially advantageous position, which brings difficulties to game users to collect fixed evidence.
Second,Whether the game user's top-up behavior was carried out due to a false perception caused by fraudulent acts. Both the Shanghai Jiading District Court and the Changsha Wangcheng District Court held that as a natural person with full capacity for civil conduct, the plaintiff had the ability to identify and control his own recharge behavior, and should bear the legal consequences on his own, and could not be found to be flawed in the validity of the network service contract between the two parties on the grounds of irrationality and fraud. On this basis, the Changsha Wangcheng District Court further proposed that "the recharge amount consumed has been used as consideration for the value-added services provided by Bubble Cool......The purpose of the network service contract has been achieved. ”
Whether it is the "game trust" behavior of the love and dating method or the "game trust" behavior of the game top ranking method, it actually belongs to the "social induction mechanism". Game operators, as regulators and providers, intervene in the process of inducing the consumption of game users, and this inducement is mainly due to the comparison psychology and superiority of gamers, while social consumption inducement is a kind of indirect induction, which hides the payment model in the vicious competition of gamers [3]. In fact, if the game operator does not take measures such as modifying the game data, then it seems that the act will hardly fall within the scope of the law. Obviously, the court did not recognize that the psychology of comparison and superiority were "misperceptions" caused by fraudulent acts.
Based on the above, judging from the two existing cases retrieved by "Wolters Kluwer", it is difficult for the court to accept the claim of the game user for the return of the recharged amount due to fraud by the "game trust" in a civil dispute when the evidence cannot prove that the game operator has committed fraud.
II"Game Trust" Criminal Cases and Their Adjudication Opinions
The author limited the type of judgment documents to "judgments" with "game trust" as the keyword of the full text and "fraud" as the cause of action, and obtained a total of 7 criminal judgments, which were searched on the "Wolters Kluwer" platform, and now summarizes the cases and their judgment opinions as follows (see Table 2):
Number
Case name
Case number
Courts
The court's determination of the act of "game trust".
Chen Zhisheng's fraud case.
2019) Min 0429 Xingchu No. 160.
People's Court of Taining County, Fujian Province.
Engaging in "game trust" on the pretext of falling in love is a crime of fabricating facts and concealing the truth, constituting the crime of fraud.
Guan Weiming, Chen Tong and other fraud cases.
2020) Su 0211 Xingchu No. 243.
Binhu District People's Court of Wuxi City, Jiangsu Province.
Pretending to be a young woman to engage in "game trust" on the pretext of being in love is a crime of fabricating facts and concealing the truth, constituting the crime of fraud.
Li Shuangyin's fraud case.
2019) Min 0429 Xingchu No. 17.
People's Court of Taining County, Fujian Province.
Pretending to be a female customer service to engage in "game trust" behavior on the grounds of purchasing a game trust number, participating in a Hall of Fame event, talking about feelings, etc., is a fabrication of facts, concealment of the truth, and constitutes the crime of fraud.
Li Zhao and Fan Hongyan fraud case.
2020) Liao 0726 Xingchu No. 90.
People's Court of Heishan County, Liaoning Province.
Fabricating a woman's identity and engaging in "game trust" in the name of male and female dating, marriage and love, etc., is a fabrication of facts, concealment of the truth, and constitutes the crime of fraud.
Ma Yunfeng, Zhang Li and other fraud cases.
2021) Zhe 1021 Xingchu No. 356.
People's Court of Yuhuan County, Zhejiang Province.
Engaging in "game trust" behavior by falsely recharging and controlling the ownership of the "number one" is a fictitious fact, concealing the truth, and constituting the crime of fraud.
Wang Fengxia's fraud case.
2019) Min 0429 Xingchu No. 25.
People's Court of Taining County, Fujian Province.
Engaging in "game trust" in the name of marriage and love or in the name of recharge and cashback is a fictitious fact, concealing the truth, and constituting the crime of fraud.
Xiong Yuwei, Dong Dezhao, Feng Xiao fraud case.
2019) Yue 0308 Xing Chu No. 223.
Yantian District People's Court of Shenzhen, Guangdong Province.
Engaging in "game trust" in the name of love is a fabrication of facts, concealment of the truth, and constitutes the crime of fraud.
Table 2 Criminal cases involving "game trust".
The crime of fraud refers to the act of defrauding public or private property by fabricating facts or concealing the truth for the purpose of illegal possession. According to the general theory of criminal law, the basic structure of the crime of fraud is "the perpetrator commits a deceptive act - the victim has a misunderstanding - the victim disposes of property because of the misunderstanding - the perpetrator or a third party obtains property - the victim suffers property losses".
Compared with the cases in the civil field where the "game trust" is not found to constitute civil fraud, the number of cases in the criminal field where the behavior of making friends and falling in love and the game top list is found to constitute the crime of fraud is relatively large, among which the proportion of "game trusts" in dating and love is relatively large, and the number of "game trusts" in the top list type of games only accounts for 1 7.
On the issue of the criminal law characterization of "game trust", there is a difference between crime and non-crime: those who hold the view that it does not constitute a crime believe that the consumption of games is a prerequisite for satisfying the victim's purpose of making friends and falling in love and satisfying his own sense of superiority as "number one", and the victim actually does not care about the playability of the game, and voluntarily gives up his property based on the act of topping up for the above purposes, so the defendant's behavior does not meet the crime of fraud;However, those who hold the view of constituting a crime believe that the victim has a wrong understanding of the purpose of "making friends", "falling in love and getting married", and "becoming the number one", and that the purpose of such behavior is to illegally take possession of the victim's property, and that this misunderstanding of the reciprocal payment and the purpose pursued are the key facts that affect whether the victim makes a top-up, so the defendant's conduct meets the constitutive elements of the crime of fraud[11].
As a kind of telecommunications network fraud, telecom fraud is the target of severe crackdown in the field of criminal law. The Supreme People's Procuratorate was released in 2022"Typical Cases of Procuratorial Organs Cracking Down on Telecommunications Network Fraud and Related Crimes".It is clarified that "the procuratorate shall penetrate the 'game trust' fraud**, and accurately determine the nature of the fraud through a comprehensive analysis of factors such as the deception of the dating technique, the abnormality of the recharge amount, and the illegality of the means of profit, and convict and punish it for the crime of fraud in accordance with the law"[12]. When the evidence is detailed and does not become an obstacle to the determination of the nature, the factor affecting whether the nature of the "game trust" constitutes the crime of fraud is still "whether the victim disposed of his or her property due to misunderstanding".
In this regard, the Wuxi Binhu District Court pointed out in the judgment of the "Guan Weiming, Chen Tong et al. Fraud Case" that "the purpose of the victim's recharge in this case was to develop a romantic relationship, not to obtain game props, titles, etc., and the so-called 'consideration' in the game private server provided by the defendant Guan Weiming and others cannot be determined to be consideration if the victim has a misunderstanding" and "although a small number of victims found or suspected that they had encountered a game trust," and "although a small number of victims discovered or suspected that they had encountered a game trust," and "although a small number of victims discovered or suspected that they had encountered a game trust."However, the reason why some of the victims still recharged was that they wanted to develop romantic relationships with the fictitious women of the defendants, without recognizing that the woman herself is a fictional reality that does not exist, so she still disposed of her property based on a misunderstanding". In short, if the victim's purpose of topping up is influenced by fictitious facts (developing a romantic relationship with a fictitious woman), then it can be considered that "the victim disposed of his property due to misunderstanding".
In the same way, this kind of thinking can also be adopted when judging the top game type "game trust". Even if the victim clearly stated that the purpose of recharging was indeed to compete for the "No. 1 game list", because the defendant "controlled the ownership of the 'No. 1 list' by operating the game backend on the game platform, directly modifying the recharge data of the internal game account, and controlling the ownership of the 'No. 1 list' by means of false recharge and creation of turnover details, etc., so as to deceive real players into recharging and donating" Therefore, the Yuhuan County Court of Zhejiang Province held that the defendant used fictitious facts or concealed the truth to form a gang for the purpose of illegal possession, which constituted the crime of fraud.
IIIConclusion
As a gray area of game promotion, it is actually not uncommon for "game trust" to defraud the perpetrator's funds by recharging the game. However, judging from the current judicial practice, the civil field is mainly limited by the parties' ability to collect and fix evidence, and the adjustment of the criminal law is still the mainstay.
(1) Civil fraud and the crime of fraudBoundaries
First of all, although the civil fraud and fraud in the "game trust" are both objectively fabricated facts and concealed the truth, and the other party has also caused economic losses, there is a clear distinction between the twoAs a type of property tort crime, the crime of fraud is aimed at illegally taking possession of other people's property, while civil fraud is subjectively for the purpose of seeking certain economic benefits.
Secondly, by examining the types of "games" in Table 2 above, it can also be found that most of the "games" that carry out the act of "game trust" and constitute the crime of fraud are games that have been operated without approval and are illegally operated, and the production is crude, and there are even cases where game operators and game promotion companies cooperate to develop games to defraud property. It can be said that the acts of false propaganda and false marketing of the perpetrators of "game trust" exceed the limits of civil fraud, and the so-called games are only a cover for the perpetrators to collect money.
Finally, the degree of deception of civil fraud is also different from that of fraud. The offence of fraud is committed if the deception employed by the perpetrator is sufficient to control the outcome of the transaction and to cause others to misunderstand and dispose of property. If the perpetrator uses deceptive means, but carries out the transaction on the premise of real transactions, and does not reach the level of causing others to deliver the property without consideration, it is only a civil fraud.
(2) Game operator compliance reminders
For game operators, game promotion is an indispensable way to expand their business territory and obtain traffic. However, from the perspective of reducing litigation disputes, game operators should avoid game promotion behaviors with ambiguous legality and promote their own compliance construction, so as to promote the standardized and healthy development of the online game industry. In addition, the filing system should also be strictly implemented to improve the game promotion mechanism.
(3) Precautionary reminders for game users
For game users, they should strengthen their awareness of security precautions and improve their self-defense capabilities. And when choosing online games, they should be carried out and installed through formal channels, and illegally published online games should be refused. In addition, users should carefully screen the information released in the game, maintain necessary vigilance against the active "pick-up" of strange players, participate in online games with a healthy attitude, and recharge the game rationally and in a controlled manner, so as to prevent falling into the "trap" woven by criminals.
Although it seems difficult for game users to realize their demands for a refund of the recharged amount due to fraud by "game trust" through civil litigation, they turn to seekingConsumer Rights Protection**Nor is it a way to do it.
References: 1] Civil Judgment of Shanghai Jiading District People's Court (2019) Hu 0114 Min Chu No. 14739.
2] Civil Judgment of Wangcheng District People's Court of Changsha City, Hunan Province (2021) Xiang 0112 Min Chu No. 5568.
3] Jiang Lei, Shuai Jiacheng, Xiao Shaolong, "Analysis of the Inducement Mechanism and Coping Strategy of Online Game Consumption from the Perspective of Marketing", China Business Review, No. 18, 2022, pp. 79-82.
4] Criminal Judgment of Taining County People's Court of Fujian Province (2019) Min 0429 Xingchu No. 160.
5] Criminal Judgment of Binhu District People's Court of Wuxi City, Jiangsu Province (2020) Su 0211 Xingchu No. 243.
6] Criminal Verdict of Taining County People's Court of Fujian Province (2019) Min 0429 Xing Chu No. 17.
7] Criminal Verdict of the People's Court of Heishan County, Liaoning Province (2020) Liao 0726 Xingchu No. 90.
8] Criminal Judgment of Yuhuan County People's Court of Zhejiang Province (2021) Zhe 1021 Xing Chu No. 356.
9] Fujian Taining County People's Court (2019) Min 0429 Xing Chu No. 25 Criminal Judgment.
10] Criminal Judgment of Yantian District People's Court of Shenzhen, Guangdong Province (2019) Yue 0308 Xing Chu No. 223.
11] Xue Jin and Sun Chao, "An Analysis of the Inclusion of "Game Trust" in Criminal Law", China Prosecutors, No. 2, 2021, pp. 40-45.
12] Case 4 of the Supreme People's Procuratorate's "Typical Cases of Procuratorial Organs Cracking Down on Telecommunications Network Fraud and Related Crimes" "Liu Moufeng and 37 others Fraud Case - Luring Players to Recharge High Amounts of Money in the Name of Forming Online Game Couples".
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