On The Application Of Law In Foreign - Related Network Infringement

With the development and popularization of Internet, significant changes in people’s life have taken place in all aspects. However, such changes have also brought huge impact on the traditional legal system, and the problem of applicable law in private international law is the focus of research. Network infringement cases occur frequently due to the characteristics such as globalization of Internet. However, network space is virtual, in the case of network infringement, it becomes very difficult to judge by which applicable law. Thus, in the face of the development of the Internet along with the arrival of information age, it becomes extremely important between the current applicable theory of tort law and the special properties of the network tort to adapt to each other. So, how can the rules of the applicable law promote the development of information network, at the same time protect the legal rights and interests of Internet users, and ensure a fair and reasonable solution to network infringement disputes? These are practical problems in urgent need of solving. Especially in recent years the development of the network is very fast, which has contributed to a closer relationship for international civil and commercial affairs and an increasing number of foreign network infringement disputes year by year.On October 28,2010, the standing committee of the National People’s Congress passed the law of the People’s Republic of China foreign-related civil relationship applicable law, which is mainly concerning about the applicable law to infringement. It mainly regulates the habitual residence to be the link point for applicable law as a major innovation, and special provisions in article 46 (1) states that Internet infringement of personality right should be applicable to the law of the place where the victim often dwells, but the law does not make clear provisions for other types of network infringement which law shall be applicable. In this paper, by analyzing the domestic and foreign legislation of tort law applicable rules and specific practices in the judicial practice and combining the characteristics of different types of network tort, the applicable conditions about network tort law is discussed.This paper mainly discusses the applicable network tort laws in the following four parts:The first part is the overview of network infringement, its characteristics and description of the main types. The author explained the basic theory, the characteristics of network infringement and form, etc, especially for the type of network infringement, detailed analysis has been made and the necessity of research concerning foreign affairs network infringement is put forward to the back of the paper.The second part is the principle rules for foreign network tort. It mainly discusses the applicable principles of traditional tort law and international network tort law, in combination with the particularity of the network and some foreign legislation, and analyzes its reasonable and standard value, aiming to improve the relative legislation of our country and explore the feasibility of applicable rules for network tort law.The third part is the legislative status quo of our country’s tort law applicable to foreign network. It mainly analyzes the law of the provisions of the applicable law issues and legislation defects and shortcomings, and puts forward the concrete problems to be solved.The fourth part is about the advice on perfection of applicable rules for our country’s network tort law. This part mainly aims at the defects and deficiencies in legislation in our country and puts forward the concrete suggestions for improvement, especially the practical methods and the suggestion on realizing feasibility of perfecting legislation according to "applicable law article 46"in consideration of the actual situation of our country.