|
Paragraph 3 provides that Judicial jurisdiction of dispute over the domain name involving foreign elements shall be exercised in accordance with Part 4 of the 1991 Civil Procedure Law. According to article 243 and 244 of the Civil Procedure Law, jurisdiction of disputes over domain names involving foreign elements have three modes, those being general jurisdiction, jurisdiction by agreement and jurisdiction by implication. But from the viewpoint of special nature of the domain name cases and complication of disputes and defects in the Civil Procedure Law, the Interpretation must prescript general jurisdiction for the domain name cases involving foreign elements on the basis of distinctions between disputes over contracts of the domain name, disputes over torts of the domain name and disputes over unfair competition of the domain name, which may help courts to deal with all kinds of domain name cases. In addition, jurisdictional bases of disputes over torts of the domain name involving foreign elements also include the place of final equipment of computer where the plaintiff finds this domain name.
II.B. Judicial Interpretation of Application of Law
Article 2(2) of the Interpretation stipulates that disputes over a domain name involving foreign elements refers to the disputes over the domain name in which one or both parties are foreign natural persons, stateless persons, other foreign enterprises, foreign organizations, international organizations, or the place of registration of domain name which is located abroad. This characterizes the foreign element in disputes over the domain name, which includes principally two elements. One is the subject matter and the other is the place of registration of the domain name. But this stipulation is not comprehensive. As a rule, international civil and commercial relations refer to those in which (1) one of the parties is (or both are) a foreign natural person, stateless person, foreign legal person, other foreign organization, foreign state, international organization, or (2) the domicile, habitual residence or seat of business is located in different countries, or (3) the subject matter which is located abroad, or (4) the legal facts that bring about the formation, modification, and termination of such relations occur abroad. As to foreign elements in disputes over the domain name, the element of the legal facts may be more obvious than the elements of the parties and the subject matter. For example, a dispute over a contract of the domain name is doubtless a case involving a foreign element if the place of conclusion or performance of the contract is abroad. For another example, in a dispute over tort of the domain name, it is also a case of dispute over the domain name involving a foreign element if the place where the tortious action is committed or the place where the result of the action occurs is abroad. In addition, this provision about the element of the parties considers nationality of the parties only but omits domicile, habitual residence and seat of business of the parties. This Interpretation may lessen the scope of disputes over the domain name involving foreign elements, which will result in many disputes over the domain name involving foreign elements being decided improperly. Therefore, what we can do is to give a more scientific and accurate definition to “the disputes over the domain name involving foreign elements”.
Article 2(3) of the Interpretation stipulates that Chapter 7 of the 1986 General Rules of Civil Law shall be applied to disputes over the domain name involving foreign elements. It seems that this is a directive providing for applicable law in disputes over the domain name involving foreign elements. According to Chapter 7 of the 1986 General Rules of Civil Law, the principle of application of law to these disputes is that rules of international convention applied in preference and international practice applied in supplement should be obeyed. In a detailed application, if the case is a dispute over contract of the domain name, it may be governed by rules of application of law of contracts, such as the principle of party autonomy and the principle of the most significant relationship. And if the case is a dispute over tort of the domain name, it may be governed by rules of application of the law of torts, such as the law of the place of the tortious action, which includes the law of the place where the tortious action is committed and the law of the place where the result of the action occurs, common lex patriae and restriction of double requirement on the law of the place of the tortious action and the lex fori. In restriction of application, application of foreign law or international practice is not incompatible with the public interest of the PRC society. However, this stipulation neither embodies the specialty of disputes over the domain name involving foreign elements nor thinks about complication of these disputes. For instance it does not contemplate how to deal with the application of law of unfair competition when the dispute is over the domain name involving foreign elements relating to unfair competition. Therefore, the Interpretation seems to classify different natures of disputes over domain names involving foreign elements, and then to apply different rules of law.
II.C. Judicial Interpretation of Judicial Assistance
There are principally two judicial interpretations about interregional judicial assistance.
On March 20, 2001, the Supreme People’s Court issued a Reply to Whether the People’s Court Accepts the Case That the Parties Apply for Recognition of Injunction of Payment Which Was Made by the Courts of Taiwan Region [hereinafter referred to as the Reply]. This is a concrete judicial interpretation aiming for requisition of the Guangdong Higher People’s Court. In this Reply, it is said that the court may accept the parties’ application for recognition of injunction of the payment which was made by the courts of the Taiwan District according to Rules on the People’s Court’s Recognition of Civil Judgments of the Courts of the Taiwan District [hereinafter referred to as the Rules]. It is the third judicial interpretation on whether the mainland courts recognize judicial documents of the Taiwan District as of yet.
|
