论共享使用权的保护必要性及路径

The Necessity of Protecting Shared Use Right and the Assessment of Penalty

人类的财产制度经历着从使用权到所有权、从所有权到使用权的转变。共享经济符合人类的发展趋势,进一步提升了使用权的价值,并催生了以公众为受益者的共享使用权。保护共享使用权是中国立法创新的契机,亦是守护人类未来的责任担当。保护共享使用权可以挽救乱象丛生的共享经济,但民法很难有效保护具有公共利益性的共享使用权,通过刑法保护共享使用权符合我国刑法先行的立法传统。在学理上,刑法保护共享使用权亦具备相当的法教义学基础。在共享主义时代,财产犯罪的立法应当摒弃以所有权为基础的数额论,走向兼顾使用权的多元化定罪标准。

The development of the Internet has generated an innovative model of shared economy.When an item is being shared under the model,a legal ambiguity incurs regarding the use right,as the theft of the shared items is beyond the current legal concept concerning theft.From the perspective of violation against the use right of the shared item and the object of the crime,theft of the shared items is distinct from that of the traditional ones;this is also the truth as of whether the use right of the owner is infringed and the identification of the victims.Shared use right is also different from traditional use right in that public interests may be involved.Despite the increasing importance of introducing laws and regulations on theft against shared items,there are still challenges in the era of shared economy,which grants profound significance to the deliberation in terms of legal protection over shared use right.Laws shall protect the shared use right.The rapid development of shared economy has justified the protection over shared use right.Shared economy is booming throughout the world,and particularly in China.It has been an economic model of massive scale,enabling the country to innovate and lead the world economy.This allows for the financial foundation and practicability of protecting shared use right in China.A close gander at the development of human society will reveal that the content change of property rights takes the course from use right to ownership and then in return from ownership to use right.Currently,the constant development of social productivity has accelerated the socialization of property,leading to the gradual advent of surplus resources.The transformation of ways to create values from owning aproperty to using a property gradually separated the value of use right from ownership.Therefore,the legal system shall follow the rising trend of use right and protect it.The criminal law shall prioritize the protection over shared use right.Firstly,while the civil law emphasizes the interests of individuals,shred use right is of public interests,resulting in the ineffectiveness of the civil law in the protection over shared use right.Moreover,due to the absence of definition of shared use right in the civil law,public interest litigation of such is unlikely.Secondly,since administrative laws and regulations in China have not covered shared right use,there is no legal foundation to protect shared use rights with administrative laws and regulations.In addition,the effectiveness of administrative penalties falls short to offset the jeopardy of infringing shared use right.Lastly,it has long been a tradition in China that the criminal law protects new kinds of rights ahead of time.Due to the high relevance of shared right to public interests,it is urgent that the effective criminal law should step in.As traditional theories related to crimes of property violation have not included shared use right,the criminal law shall narrow the gap by recognizing its independent legal status.As a matter of fact,it is of solid juristiche dogmatic foundation to utilize the criminal law for the protection of shared use right.To begin with,the criminal law of China already has articles protecting independent use right,and the use right protection in Law of the PRC on Public Security Administration is the extension and follow-up.Secondly,the theft of shared items takes place with the intention of illegal possession,which is not equal to long-term illegal possession.Under the circumstances of information era when the ownership is evidently separated from use right,it is inappropriate to regard illegal possession as the equivalent of unlawful gains.Approaches to penalty assessments resulted from infringing shared use right should be innovative.In an era of shared economy,the assessments of crimes of property violation should be based on more than just the amount of money involved.Instead,an assessing system built on diverse factors should be introduced.In the case of shared use right,assessment based on value in use is an employable suggestion.