사이버 공간에서 국가관할권 문제의 해결방안

Abstract

Approach To the State Jurisdiction in Cyberspace With the emergence of global networks, i.e internet, states’ exercise of jurisdiction deviates from forseeable or adjustable scopes of traditional state jurisdiction, thereby causing various problems arising from laws and regulations of individual states. The main cause of these problems is that internet is accessible globally and that it is impossible for a physical border to restrict user’s access to specified data. Accordingly, acts on the internet that are legal in the state where they are initiated may be illegal in other states, even though the act is not specifically targeted at those particular states. Jurisdiction conflicts abound, both negative (i. e., no state claims jurisdiction) and positive (i.e., several states claim jurisdiction at the same time). The problems of multiple jurisdiction or concurrent jurisdiction may be ultimately settled by a multilateral treaty regime, which has been developed in fields of international spaces, such as high seas, Outer space, or Antarctica. The theory of international spaces begins with one proposition: the basis for the jurisdiction to prescribe should be nationality, not territoriality, in international spaces such as Outer space, Antarctica, and the high seas. This general proposition must also be strengthened and observed in the context of state jurisdiction over internet activities states’ practices and provisions of relevant multilateral treaties about state jurisdiction.