중국의 관점에서 미국의 롱암(long-arm)관할에 대한 전략적 활용 연구

Abstract

Purpose - Through the analysis of many problems, we can see The American long-arm jurisdiction is an American style of extraterritorial jurisdiction, which is generally divided into legislative jurisdiction, judicial jurisdiction and jurisdiction to enforce. The bases of these jurisdictions are not only related but also different. The long-arm jurisdiction faces both the international community and domestic society, and often involves sovereign equality between countries, litigation relationships between courts and private parties, and equality between private parties. American courts in sequence seek jurisprudential basis from power theory, connection theory and the theory of convenience, fairness and justice. Design/Methodology/Approach - the long-arm jurisdiction, which originates from solving interstate jurisdiction problems, has been expanding to extraterritorial legislative jurisdiction and jurisdiction to enforce in civil, commercial and criminal matters. Its application is deeply influenced by American politics and foreign policies, often violates the international obligations of the United States, infringes upon other countries sovereignty, recklessly ignores the international comity and the requirement of ‘reasonableness’under international law. Findings - With the change of international relations and the ambiguity of the long-arm jurisdiction basis itself, the tendency of the United States to abuse the long-arm jurisdiction to various countries -related matters becomes more and more obvious. Research Implications - In order to effectively deal with the abuse of the long-arm jurisdictions by the United States, various countries needs to establish an effective system of extraterritorial application of law from two perspectives of reference and response, and three levels of legislation, judicature and law-enforcement, in accordance with the rules of international law. With the expansion of US civil jurisdiction, long-arm jurisdiction has recently continued to expand where applicable, but it tends to be strict in applicable conditions. Long-arm jurisdiction can cater to the needs of judicial practice due to its flexibility and thus it is reasonable to some extent; however, the unilateral expansion of jurisdiction will lead to international conflicts. For long-arm jurisdiction of U. S. court, a various countries concerned may bring forward the forum non convenient or at its own option submit the case to a competent court of the various countries as countermeasure. In addition, various countries may legislatively refer to the reasonable factors of long-arm jurisdiction and improve the jurisdiction system of international civil litigation.