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 a property 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.
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引用本文:
高艳东 张琼珲. 论共享使用权的保护必要性及路径[J]. 浙江大学学报(人文社会科学版), 2019, 5(1): 227-.
Gao Yandong Zhang Qionghui. The Necessity of Protecting Shared Use Right and the Assessment of PenaltyGao Yandong. JOURNAL OF ZHEJIANG UNIVERSITY, 2019, 5(1): 227-.