论互联网运用对传统国际私法的影响
发布时间：2019-01-04 12:36
【摘要】：互联网如今已经渗透进我们生活的方方面面,深刻地改变我们的生活方式,其所具有的全球性、虚拟性、多元性、自由性等特征天然和国际私法有着密不可分的联系。从国际私法的角度对互联网中的相关法律问题做出分析并非新颖,但其实用性却令人着迷。 目前国内对这一问题的研究主要集中在几个领域:互联网侵权与国际私法;网络知识产权问题与国际私法;电子商务与国际私法。其中研究最多的当属侵权领域和合同领域,主要涉及连接点及随之而来的法律适用问题,程序方面的管辖问题。 本文通过对传统物理空间和互联网空间进行了横向的比较,指出互联网空间具有全球性、虚拟性和组织管理的特殊性,并进一步比较了互联网空间与传统空间的区别以及对传统法律环境的影响。在承认并分析互联网空间带来的法律环境的变化的前提下,本文就目前研究中存在的三种导向进行了说明和分析,并认为互联网空间下的国际私法问题的解决不需要我们“不破不立”,实际上只是传统法律关系发生的背景的变化,并以此为研究的基准和导向。 互联网对于传统侵权领域的影响是首先需要关注的。在回顾传统的侵权领域的法律适用方法后,对互联网环境下侵权领域的新特征从人身权领域、财产权领域、知识产权领域以及公法冲突领域进行了分别解读。进一步说明互联网对传统连接点和其他连接点的冲击。在如何解决冲击上列举了如下法律选择方法:侵权行为地法律适用,最密切联系原则运用,当事人协议选择法律,网络社区自有规则,法律选择单边方法。 在合同法部分,回顾了客观标志在合同准据法确定中的运用,如合同缔结地、履行地、当事人住所地,并回顾了意思自治原则和最密切联系原则、合同自体法原则。介绍了电子合同的运用和影响,并着重讨论了意思自治原则和最密切联系原则在互联网环境下的运用和发展。 具体到管辖问题,回顾了互联网对于传统的属地管辖、属人管辖和传统协议管辖的冲击,对普通管辖权中的原告就被告等原则进行了分析。重点分析了互联网环境下协议管辖的地位和具体的判定方法。
[Abstract]:Nowadays, the Internet has penetrated into all aspects of our life and profoundly changed our way of life. Its global, fictitious, pluralistic and free characteristics are inextricably related to private international law. It is not new to analyze the relevant legal problems in the Internet from the perspective of private international law, but its practicability is fascinating. At present, the research on this problem is mainly focused on several fields: Internet infringement and private international law, network intellectual property rights and private international law, electronic commerce and private international law. Among them, the field of tort and contract is the most studied, mainly involving the connection point and the problems of the application of law and the jurisdiction of procedure. By comparing the traditional physical space with the Internet space, this paper points out that the Internet space has the particularity of global, fictitious and organizational management. Furthermore, the difference between Internet space and traditional space and its influence on traditional legal environment are compared. On the premise of acknowledging and analyzing the change of the legal environment brought by the Internet space, this paper explains and analyzes the three kinds of directions existing in the present research. The author thinks that the solution of the private international law problem under the Internet space does not need us to be "unbreakable", in fact, it is just the change of the background of the traditional legal relationship, and it is the basis and direction of the research. The impact of the Internet on the traditional tort field is the first concern. After reviewing the traditional methods of law application in the field of tort, this paper interprets the new features of the field of tort in the Internet environment from the field of personal rights, property rights, intellectual property rights and the field of conflict of public law. Further explain the impact of the Internet on traditional connection points and other connection points. On how to solve the impact, this paper lists the following legal options: the application of tort law, the application of the principle of the closest connection, the choice of the law by agreement of the parties, the self-rule of the network community, and the unilateral method of the law selection. In the part of contract law, the author reviews the application of objective signs in the determination of applicable law of contract, such as the place of contract conclusion, place of performance, place of residence of the parties, and the principle of autonomy of will and the principle of the closest connection, and the principle of autologous law of contract. This paper introduces the application and influence of electronic contract, and emphatically discusses the application and development of the principle of autonomy of will and the principle of closest connection in the Internet environment. On the issue of jurisdiction, this paper reviews the impact of Internet on traditional territorial jurisdiction, personal jurisdiction and traditional agreement jurisdiction, and analyzes the plaintiff's principle of defendant in ordinary jurisdiction. This paper mainly analyzes the status of the protocol jurisdiction and the specific judgment method under the Internet environment.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997
本文编号：2400301
[Abstract]:Nowadays, the Internet has penetrated into all aspects of our life and profoundly changed our way of life. Its global, fictitious, pluralistic and free characteristics are inextricably related to private international law. It is not new to analyze the relevant legal problems in the Internet from the perspective of private international law, but its practicability is fascinating. At present, the research on this problem is mainly focused on several fields: Internet infringement and private international law, network intellectual property rights and private international law, electronic commerce and private international law. Among them, the field of tort and contract is the most studied, mainly involving the connection point and the problems of the application of law and the jurisdiction of procedure. By comparing the traditional physical space with the Internet space, this paper points out that the Internet space has the particularity of global, fictitious and organizational management. Furthermore, the difference between Internet space and traditional space and its influence on traditional legal environment are compared. On the premise of acknowledging and analyzing the change of the legal environment brought by the Internet space, this paper explains and analyzes the three kinds of directions existing in the present research. The author thinks that the solution of the private international law problem under the Internet space does not need us to be "unbreakable", in fact, it is just the change of the background of the traditional legal relationship, and it is the basis and direction of the research. The impact of the Internet on the traditional tort field is the first concern. After reviewing the traditional methods of law application in the field of tort, this paper interprets the new features of the field of tort in the Internet environment from the field of personal rights, property rights, intellectual property rights and the field of conflict of public law. Further explain the impact of the Internet on traditional connection points and other connection points. On how to solve the impact, this paper lists the following legal options: the application of tort law, the application of the principle of the closest connection, the choice of the law by agreement of the parties, the self-rule of the network community, and the unilateral method of the law selection. In the part of contract law, the author reviews the application of objective signs in the determination of applicable law of contract, such as the place of contract conclusion, place of performance, place of residence of the parties, and the principle of autonomy of will and the principle of the closest connection, and the principle of autologous law of contract. This paper introduces the application and influence of electronic contract, and emphatically discusses the application and development of the principle of autonomy of will and the principle of closest connection in the Internet environment. On the issue of jurisdiction, this paper reviews the impact of Internet on traditional territorial jurisdiction, personal jurisdiction and traditional agreement jurisdiction, and analyzes the plaintiff's principle of defendant in ordinary jurisdiction. This paper mainly analyzes the status of the protocol jurisdiction and the specific judgment method under the Internet environment.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997
【参考文献】
相关期刊论文 前2条
1 肖永平,郭明磊;网址的法律地位探析[J];法学杂志;2000年03期
2 汤叶霞;;电子证据的相关法律问题[J];网络法律评论;2001年00期
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