사이버공간과 국제재판관할권

Abstract

Cyberspace and International Juridical Jurisdiction Chang, Sin* Sovereignty is founded upon the fact of territory and therefore without territory a legal person cannot be a state. Legal concepts as sovereignty and jurisdiction can only be comprehended in relation to territory and thus the principle whereby a state is deemed to exercise exclusive power over its territory can be considered as a fundamental axiom of the classical international law. A 'sovereign' state possesses sole jurisdiction over its citizens and internal affairs. On the other hand, it could be said that cyberspace sovereignty is founded upon cyberspace territory and so legal concepts as cyberspace sovereignty and jurisdiction can be comprehende in relation to cyberspace territory where the electronic market exercise exclusive power over its territory. The exercise of cyberspace jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site. In the U.S, courts appear to be shifting away from the Zippo approach- a passive websites, where a defendant has simply posted information on the Internet ‘available to those who are interested’ and absent additional contact with the forum state or its citizens, would not be enough to support jurisdiction.- towards a test based on the effect of the activity within the jurisdiction. In the international dimension, Yahoo case, the French judge ordered the world's most popular Web site to implement technical or access control measures blocking auctions featuring Nazi memorabilia hosted on the Yahoo.com site from French residents. And it held that it was entitled to assert jurisdiction over the dispute since the content found on the Yahoo.com site was available to French residents and was unlawful under French Law. The basis of the decision was the impact of cyberspace actions upon the territory and sovereignty of France. In the U.S, the District Court concluded that it could properly exercise specific jurisdiction over LICRA and UEJF- the French defendants-holding that there was an actual controversy causing a real and immediate threat to Yahoo! and that enforcement of the French order in the United States would violate the First Amendment. And it held that the French court ruling cannot be recognized or enforced in the United States both because the French court lacked jurisdiction in the first place and because the judgment was impermissible under the First Amendment. The court of Appeal held that even if a nonresident party's contacts with the forum state are insufficient for general personal jurisdiction, the party may be amenable to jurisdiction unde the specific jurisdiction doctrine, if the claim is related to the party's activities in or contacts with the form state. So LICRA and UEJF's conduct toward California is sufficient to establish their purposeful avail ment of the forum.