국제전자상거래상 소비자계약분쟁의 국제재판관할권에 관한 연구 -미국의 타깃팅 재판관할권이론을 중심으로-
Study on International Jurisdiction for Consumer Contract Disputes in International E-Commerce- focusing on U.S. Targeting Approach-
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Abstract
The Internet environment promotes transactions between buyers and sellers regardless of space and borders. Thus, handling disputes from international transactions has been far more complicated than disputes within the consumer’s domestic borders. The resulting problems and questions are: whose laws apply to online consumer contracts, where can consumers bring a suit against online businesses whose business place is out of the consumer’s domicile, and how can court decisions be enforced over non-resident defendants. Choice of law, jurisdiction, and enforcement of court decisions are important issues when it comes to international electronic transactions. Above all, this thesis addresses personal jurisdiction issues over domestic and international disputes in consumer electronic transactions. The U.S. courts have developed the personal jurisdiction principle in the context of the Internet, such as the Zippo sliding scale test, the effects-based test, and the targeting approach. Among these tests, the U.S. currently favors the targeting approach, which focuses on the intent and conduct of online businesses. On the other hand, the European Union has employed a “country-of- destination” approach in order to promote consumer confidence in e-commerce. This depicts the difference between the United States and the European Union policies regarding e-commerce. The United States favor a pro-business approach to facilitate the growth of this new field of Industry while the European Union favors consumer protection. I would like to recommend the European Union’s approach as a possible Internet jurisdictional rule, especially the Brussels Regulation which emphasizes consumer protection. Since jurisdictional rules in the Europe have been codified into the Brussels Convention, the EU approach provides higher predictability and certainty than the U.S. approach does. The consumer living in a member state of the European Union can bring a claim against the online seller in his or her place of residency. To balance the unequal financial powers of customers and businesses, litigation in the consumer’s place of residency is much more reasonable, for it protects the weaker party. However, the U.S. is not likely to agree with the proposed Internet Jurisdictional rule since it opposed the Hague Convention which had been proposed to reconcile the difference between the United States and the European Union, and to unify international jurisdictional rules. Therefore, this thesis propose that the Internet Jurisdictional rule should utilize the revised targeting approach by moving the burden of proof to online businesses in order to induce participation of the United States. A plaintiff (the consumer) may bring a claim in the courts of the State in which he is habitually resident, unless a defendant (the business) proves that it does not target the forum state. Under this provision, the online consumer may continue to enjoy his right to bring a suit in his own place of residency while he may not be vulnerable to burden of proof and higher litigation costs in the foreign jurisdiction. In addition, an online business may avoid being subject to other unwanted jurisdiction by proving that it does not aim its business at the forum state. Ultimately, this Internet Jurisdictional rule will take advantage of the certainty and predictability of the EU stance as well as the flexibility of the US position.
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