On The Judicial Jurisdiction Of Network Torts

With the rapid development of the Internet, it has brought not only revolutionary changes for the traditional life style to the human beings but also the profound and traumatic impact on the legal system. Among the legal issues related the Internet, the network tort is one of the more prominent problems and the suit of the network tort must face the jurisdiction of the Internet infringement. This is the dissertation on research of how to confirm the jurisdiction of the network tort. The author analyzes the challenge of the Internet infringement over the Chinese traditional civil tort jurisdiction by introducing the development of the Internet, the characteristics of the network tort suit and the generation process of the Internet infringement. Further more, the author gives us a comprehensive assessment on the theory of the network tort jurisdiction proposed by the international theoretical and practical communities and tries to conceive the effective program on the rules of civil tort jurisdiction with the hope of contribution to the study and the solution of the problem.The dissertation is divided into four chapters.The first chapter describes the characteristics of the cyberspace( such as objectivity, globalization, virtuality, management discretization, interactivity and real-time) and analyzes the characteristics of the network tort as the following four aspects: the invisibility of the main body, the difficulty to obtain the evidence, the difficulty to identify the nature of the network tort, the instability of the place of the Internet infringement and the wide range of the Internet infringement, the serious consequences and instantaneity. Through the complete analysis to the network tort, the author points out that the principle of"the defendant's residence over the plaintiff's residence"is getting into theoretical difficulty and the region of jurisdiction in the cyberspace is ambiguous. In addition, it is hard to identify the place of tort (including the place of act and the place of consequence). The jurisdictional rules of traditional tort cases are facing unprecedented difficulties in the Internet environment.The second chapter expounds on the new jurisdictional theories about the Internet infringement that are internationally popular. They are the new theory of sovereignty, jurisdictional theory of relativity, web sites as the new basis of jurisdiction, servers as the basis of jurisdiction, the plaintiff's residence as the basis of jurisdiction and the theory of the most closely linked place. And comment on their strengths and weaknesses respectively under the full argument. The author analyzes detailedly the"minimum contact"principle of the U.S. and related cases and elicits that the implementation of the principle will make the network operators subject to the jurisdiction which they have never been to. This will overburden the network operators excessively and place the Internet users around the world under the jurisdiction of the United States. In this way, it will not only deviate from the principle of the legal justice and fairness but also hinder the development of the Internet. Accordingly the author points out that the real way to develop and improve the Internet-related legal system is to cooperate with each other among the international communities.The third chapter analyzes the lack of the two judicial interpretations on the jurisdiction of the network tort that were issued by the Supreme People's Court combined with the classic cases in our country's judicial practice, that is,"the interpretation of a number of issues about the Supreme People's Court on the hearing related computer network copyright disputes"and"the interpretation of a number of issues about the Supreme People's Court on the hearing related computer network domain name civil disputes". Through the brief description about several manifestations of our country's Internet infringement, such as the privacy infringement, defamation tort, intellectual property right infringement and the Internet domain name infringement, the author points out that the judicial interpretations on the jurisdiction of the network tort are far from covering all the network torts and very unscientific from legislative technique so proposes to make uniform provisions in the judicial interpretations of the civil procedure law.The fourth chapter is the core of the paper. It focuses primarily on how to rebuild the standard of the jurisdiction of the network tort under the new situation. The author proposes to build a number of ideas of the relevant principles of the jurisdiction system of the network tort, they are the principle of adhering to jurisdiction sovereignty, the principle of strengthening the national cooperation, the principle of being geared to international standards, the principle of the most significant relationship, the principle of the plaintiff's residence and the defendant's residence as the basis of jurisdiction and the principle of forum non convenience. Then the author analyzes the principle of forum non convenience in detail and points out that the principle of forum non convenience will play a greater role in the jurisdiction of the network tort. Further more the author carries out a new analysis on the Internet infringement and points out that the determination of the place of the Internet infringement should be distinguished the place of act from the place of consequence, we should treat the location of computer terminals, the ICP sever location and whether or not intent on making use of as the reference factors.At the part of conclusion, based on the comprehensive discussion, the author gives a new basis for the jurisdiction of the network tort: the cases of network tort should be under the jurisdiction of the court of the plaintiff's residence, the court of the defendant's residence and the court of the place of tortious act. The place of tortious act includes the place of act and the place of consequence. The place of act refers to the location of computer terminals where the Internet infringement takes place or the ICP sever location that the infringer intends to make use of. The place of consequence refers to the location of computer terminals that the infringed finds the Internet infringement or the ICP sever location that the infringed intend to make use of or find the Internet infringement. The plaintiff proceeds against the defendant in the court of the plaintiff's residence or the court of the place of tort consequence, if the court of the plaintiff's residence or the court of the place of tort consequence think itself forum non convenience as the jurisdiction of the specific Internet infringement, they can give up hearing the case and transfer the case to the optimum alternative court. The plaintiff and the defendant can also present the optimum list of the alternative court as the alternative candidate. If the court of the plaintiff's residence or the court of the place of tort consequence give up hearing the case, they should check up according to their authority and determine the court that they should transfer the case to in the light of the optimum list of the alternative court that the plaintiff and the defendant provide with respectively. Without the defendant's objection or the optimum alternative court, the court of the plaintiff's residence or the court of the place of tort consequence can't give up hearing the case. Of course the time that the plaintiff and the defendant present the optimum list of the alternative court should be limited to the reasonable period that the defendant raises the objection on the jurisdiction. The plaintiff and the defendant also have a full proof obligation when they make the proposal of forum non convenience and present the optimum list of the alternative court.