Jurisdiction On The Internet—P. R. China
By Yunying Sun
The purpose of this memo is to provide some information on how issues concerning jurisdiction on the Internet are solved in P. R. China. Due to the statutory legal system of China, there is little case law concerning this subject. To the author’s knowledge, so far no Internet specific statutes have been promulgated in P.R. China (excluding Hong Kong Special Administrative Region, Hong Kong published Electronic Transactions Bill in 1999, modeled on the United Nations Commission on International Trade Law—Model on Electronic Commerce). Therefore, one who researches jurisdiction on the Internet in China has to turn to general international or national rules covering issues of jurisdiction.
According to Chinese scholars’ opinion, there are two types jurisdiction, one derived from the sovereign power is adjudicatory jurisdiction, the other is prescriptive jurisdiction, which regulates which court in the state exercises the judicial power to certain cases. The latter rule is based on the first. Therefore, in principle, there exists adjudicatory jurisdiction first, then there is the issue of prescriptive jurisdiction. To determine which court exercises the judicial power over certain cases, The Code of Civil Procedure and the Crime Procedure Law regulate the content explicitly. In principle, each court is in charge of the cases in its adjudicatory boundary. There are some exemptions from the above principle, because of the special characters of some cases, there are also subject matter jurisdiction, and in light of the special characters of the case, the law regulates different level court that has adjudicatory power over this case.
B. JURISDICTION AND CIVIL LAW MATTERS
In China, the main rules covering jurisdiction to prescribe and jurisdiction to adjudicate on civil issues are the following:
Application of Law in Civil Law in Civil Relations with Foreigners (Art.142—Art.150)
The Principles determines which state’s law that shall be applied in a
certain civil matters.
The Code deals with the issues of jurisdiction to adjudicate and also covers international arbitration and judicial assistance (e.g., enforcement of foreign Courts’ judgements or the awards of a certain arbitration tribunal).
These regulations are formulated to strengthen the management of computer information networks connected to international networks and safeguard the healthy development of the international computer information exchange.
Article 14. regulates "Public security organs shall order those who violate the provisions of Art. 6, 8 and 10 to stop networking, issue them a warning, and impose a fine of no more than 15,000 Yuan; earnings from illegal activities shall be confiscated where applicable".
The purpose of these regulations is to strengthen the security and the protection of computer information networks and of the Internet, and to preserve the social order and social stability.
Generally, to the jurisdiction concerned with foreign nationals, there are mainly general jurisdiction (that is, the plaintiff is subordinated to the defendant), specific jurisdiction (i. e. the jurisdiction in rem and conduct), exclusive jurisdiction (that means that the government claims the sole jurisdiction to some cases involved the foreign nationals), and negotiated jurisdiction ( that means parties select a forum in a place with actual connections with the dispute through a written agreement) according to Chinese law.
In sum, there are the following principles to determine the jurisdiction:
1. The State of Domicile Principle
According to the related law, whatever their nationality, a lawsuit will be sued in the court of the state of the defendant’s domicile. In order to determine whether a party is domiciled in a contracting state, a court shall apply its domicile; in order to determine that seat the court shall apply its rules of private international law. For example, if the defendant’s domicile is P. R. China, Chinese court will apply the internal law rules and related Chinese private international law to determine the domicile.
2. The Principle of Personal Jurisdiction
Nationality is a comparatively stable respect in the jurisdiction, therefore in Chinese law it is one principle to determine jurisdiction.
3. The Principle Freedom of Choice
In Article 244 of the Code of Civil Procedure, it is regulated that parties to a dispute over a contract involving foreign factors may select as the jurisdictional court a court in a place with actual connections with the dispute. However, the provision of this law on jurisdiction by level and exclusive jurisdiction shall not be contravened.
In Article 245 of the Code of Civil Procedure, the provision is: if the defendant in a civil lawsuit involving foreign interests raises no objection in relation to the matter of Chinese court jurisdiction and responds to the prosecution and replies in his defense, this shall be deemed as acknowledgement of the court jurisdiction over the case.
4. The Principle of the Related Location
Except the above mentioned main rule, the Code of Civil Procedure provides a plaintiff with a choice where he may sue the defendant. The plaintiff can choose the place where the contract should be performed, or the place where the contract was signed or executed, or of the distrainable property, or of the place where the infringing conduct took place or where the representative office is located, to be the forum.
5. The Principle of the Exclusive Jurisdiction
According to Article 246 of the Code of Civil Procedure, a lawsuit
initiated as the result of a dispute over the implementation within China of a Sino-foreign joint equity enterprise contract, Sino-foreign co-operative enterprise contract or Sino-foreign co-operative venture natural resources exploration and development contract shall come under the jurisdiction of a forum of P. R. China.
Regarding civil matters, the Code of Civil Procedure is essential in the interpretations over jurisdiction issues on the Internet. However, it is not updated and adjusted to the particular elements of E-commerce. To avoid the disputes of jurisdiction, the better choice, which is also the common practical solution, is to write down the agreement of jurisdiction by the consent of parties. To follow up the development of the Internet and the new technique and satisfy with the requirement, the Code of Civil Procedure would be to make some amendments. The related research is proceeding in China.
C. JURISDICTION AND CRIMINAL LIABILITY
Criminal law is closely related with the sovereignty, every country will actively exercise its jurisdiction to the disputes concerned with the interests of the country, society, or its people. If there is cooperation between countries, it must be based on the principle of reciprocity and mutual benefits. Therefore, the influence of the Internet in this area is little to the jurisdiction. When the dispute arises, it will be a hard nut. Most of countries will obey the traditional rules over jurisdiction including China.
In China, the main rules covering jurisdiction to prescribe and jurisdiction to adjudicate on criminal law issues are the following:
Regulate the jurisdiction over PRC state personnel, and foreigners.
Part II Chapter VI, Section 9 regulates the crime of producing, selling, or disseminating obscene materials. Due to the abuse of the obscene materials on the Internet, Chinese government tries to establish some law to prohibit its harmful influence to Chinese society and Chinese culture.
Connected to International Networks: Article 15. Those who violate these regulations while at the same time breaking other relevant laws and administrative rules and regulations shall be punished in accordance with the relevant laws and administrative rules and regulations; those whose actions constitute a crime shall be investigated to ascertain their criminal responsibility.
D. Computer Information Network and Internet security, Protection
and Management Regulations: Article 19.
The Public Security computer management and supervision organization is responsible for pursuing and dealing with illegal computer information network activities and criminal cases involving computer information networks. Criminal activities in violation of Art. 4 or Art. 7 should according to the relevant State regulations, be handed over to the relevant department or to the legal system for appropriate disposition.
According to Chinese law, Chinese authorities have the right to exercise jurisdiction over property, persons, acts or events occuring within Chinese territory.
There are following principles:
According to the international law, on the basis of the Nationality Principle, Chinese authorities have jurisdiction to prosecute and punish the person who violates Chinese criminal law and regulations within the territory of China or abroad.
This principle means China has jurisdiction over crimes happening within Chinese territory. And in China, the Objective Territory Principle is applicable, according to Chinese relevant law, Chinese court has jurisdiction over conducts started in other country but complete within Chinese territory; or causing gravely harmful effects on the social or economic order in Chinese territory. This principle can be applied to crimes over Internet.
Regarding crimes over the Internet, the Criminal Law and the
Criminal Procedure Law are essential in the interpretations over
jurisdiction issues. And Management of Chinese Computer
Information Network Connected to International Networks and
Computer Information Network and Internet Security, Protection
and Management Regulations are subsidiary to the law in the Internet.
D. ENFORCEMENT JURISDICTION
According to Chinese law, enforcement of a judgement can only be had is a forum in which assets belongings can be found and, pursuant to a court order of that forum, seized by the executive arm of government, sold, and the proceeds turned over to the plaintiff in satisfaction of the judgement. When a judgement for which recognition is sought has been rendered in China by a foreign court, its recognition depends on the Code of Civil Procedure and the Criminal Procedure Law or the principle of mutual reciprocity or the international treaties which China has concluded. But if it is found to be in contravention of the basic principles of the PRC, or China’s sovereignty, or its national and social interests, the court shall not recognize the foreign judgement validity or enforce it.
From the above discussion, one can acknowledge the legislation on the Internet in China is only at the start point, the related law has little content about the Internet. The principles of jurisdiction over the Internet have close relation with the traditional rules. However, e-commerce is becoming a significant segment of the global economy, Chinese government and legislative organs pay close attention to the e-commerce, in the near future, the new related law or the amendments of the promulgated law will be enacted.
Internet: Jun Zhu
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