Legal Regulation Of Foreign-Related Network Infringement

In just over two decades since China's official access to the Internet in 1994,the Internet has brought tremendous changes to our lives.Now,as long as able to connect to the Internet we can easily do "not out of door,known to the world",to say the Internet opened the door of a new world for us,but also for the occurrence of tort opens up a new field.Due to network infringement inevitably has the characteristics of the network,its different from the traditional differences in general tort,especially the network infringement super-regional characteristics of foreign-related network infringement is more frequent.This paper argues that should dialectically treat this kind of difference,on the one hand,there is no denying that the differences of network infringement does the original domestic law and international private law has caused a certain impact,on the other hand,we also can find the problem this as an opportunity to solve the problem.First of all,in this paper,the network infringement behavior is defined,based on the analysis of scholars to give the definition of network infringement can found that scholars understanding of network infringement is not unified,the main controversy lies in the network tort should be attributed to general tort or special tort,this article expounds the general tort and tort which distinguish standard,in accordance with the distinguishing standards discussed in this paper,divided into network tort refers to happen on the Internet does not involve criminal in general civil tort.Then,this article on the basis of network infringement of foreign-related network infringement is defined,and the biggest difference between it and general civil infringement lies in its involvement.Combined with the judicial interpretation of the applicable law on foreign-related legal relations,it can judge whether network infringement is a foreign-related network infringement from the three components of civil legal relations and the habitual residence.Secondly,introduced the United States,the European Union,Japan and South Korea for the legal regulation of network infringement experience,outside experience mainly involves two problems: one is the principle of "safe haven" of the problem,the United States,the European Union and Japan have the relevant provisions on the principle of "safe haven",was among the first to make provision of the United States,the European Union and Japan on the basis of using the experience of the United States and the corresponding development,experience in practice can offer beneficial reference for our country to perfect the related system.Second,network real-name system,South Korea network tort law regulation is the most distinctive about the relevant provisions of the real-name system,it is the first network real-name system state in the form of legislation regulation,special attention is needed here is South Korea the implementation of the real-name system has its special political and social base,while South Korea's constitutional court in 2012 made the system ruled unconstitutional,but the content of the network real-name system has not been completely abolished,or needto discriminate.Again,this article from the foreign-related network infringement of the special provisions and general provisions of substantive law and procedural law the general provisions of three levels combed the network tort law in our country,as can be seen from the legislative level and legislative content in our country the legal regulation of network infringement have been quite achievements,but the special provisions on the foreign-related network tort no matter in quantity or in content are relatively thin.Finally,although the network infringement is general tort,but the super-regional and the complexity of network characteristics often makes network infringement cases often have foreign factor,to form a complex network infringement cases involving foreign elements,the network infringement cases involving foreign elements will inevitably involve different countries and the area of jurisdiction and applicable law.That the impact of the network infringement of private international law concerning foreign affairs mainly for applicable jurisdiction over foreign-related network infringement dispute and network infringement of the applicable law concerning foreign affairs challenge,such as join point is difficult to determine,with every applicable law and a series of problems,network caused by the infringement of the above problems,the author of this paper gives the corresponding solution Suggestions respectively.