The Internet technology has penetrated into every corner of our life, it provides new means of communication for us, a new way of information, and at the same time, a new mode of economic growth, but also brought us a series of legal problems: such as the network copyright infringement of network, how to protect? How to solve the network the privacy issue? How to ensure the security of network information? Based solution to the above problem is to solve the jurisdiction problem. As MORRIS said: jurisdiction is in a special position, often happen, if the jurisdiction has been solved satisfactorily, choice of law would not be what problem. [1] limited to the purpose of this article, and the ability of space, this paper only involves the jurisdiction of transnational networks of civil and commercial cases, and does not involve the jurisdiction within the country and transnational criminal network network case jurisdiction problem. 　

One, the traditional jurisdiction in private international law theory

Before discussing INTERNET environmental jurisdiction according to the traditional challenges it is necessary first to foreign-related civil and commercial cases jurisdiction and the jurisdiction basis gives the definitions, and the traditional jurisdiction in private international law theory review. Jurisdiction is the power or authority to a state court of civil and commercial cases involving foreign elements in the trial and adjudication; [2] jurisdictional basis (Jurisdiction bases) refers to a national court have jurisdiction over civil and commercial cases involving foreign elements in reason. The [3] of traditional private international law in civil or commercial cases jurisdiction is mainly based on the following four: [4]

(a) general jurisdiction

Ordinary jurisdiction is also called the general jurisdiction, is the foundation of national jurisdiction, roughly divided into three kinds of situations:

1, to the domicile of the defendant as the basis, the case the defendant has his domicile jurisdiction of the court trial, such as Germany, Japan and other countries;

2, by nationality as the basis, the State Party of the case by the court, such as the "French Civil Code" fourteenth article: foreigners don't living in France, has contracts in France and the French people, thus the performance of contractual obligations, the French court, which was in the contracting of foreign the French debt, may also be transferred to the French court. 　

3, to reach as the basis, as long as in the territory to the summons to the defendant, even temporarily transit of foreign defendants, home court is made against the foreign defendant's action in personam jurisdiction. 　

(two) the special jurisdiction

The special jurisdiction is the specific contact case with the court of jurisdiction is determined, the specific factors can be divided into two types and behavior. Refers to other property litigation subject matter or the parties have legal significance, refers to the act or omission of the two kind. The special jurisdiction generally include the following;

1, action on the contract, the contract or fulfilled court;

2, action of tort, jurisdiction by the infringement court;

3 in the criminal procedure, an incidental civil action, criminal litigation jurisdiction court;

4, by the branches of the company business, business agent or other institutions that cause controversy, by the branch, agency or other branch offices under the jurisdiction of the court;

5, about the right of action under the jurisdiction of the court of the place. 　

(three) exclusive jurisdiction

Exclusive jurisdiction refers to the domestic legislation and international treaties a state court has the special nature of some of civil and commercial litigation has the monopoly or exclusive jurisdiction, the court if he accepted these cases, the decision will not be recognized and enforced under the jurisdiction of national courts, the parties can not change this kind of case to protocol. Foreign related civil and commercial cases belong to the exclusive jurisdiction of the two main categories:

1, about the immovable property lawsuit from immovable property is located under the jurisdiction of the court;

2, about marriage, family, inheritance cases, some countries will be included in the scope of their exclusive jurisdiction. 　

(four) the agreement jurisdiction

The agreement jurisdiction is defined by both parties before or after a dispute occurs, the jurisdiction to determine the jurisdiction of the courts of the controversial case. In some countries, the law can be by agreement of the parties under the jurisdiction of the court case, the laws of some countries are provided with facts parties can only choose and the dispute of the case as the jurisdiction of the court of court agreement. The agreement jurisdiction can be made to express or implied, tacit jurisdiction agreement, can be deduced from the following acts:

In 1, the defendant

2, the defendant shall submit his defence

3, the defendant in court by the lawyer

4, the defendant counterclaim

Two, the INTERNET environment and the characteristics of the traditional jurisdiction theory challenge

(a) INTERNET environment and its characteristics

INTERNET, Chinese known as the Internet, the Internet, it is a collection based on modern computer technology cooperation of tens of thousands of computers and network information together, it is the product of digital computer technology and modern communication technology, is the foundation is the arrival of the information society. [5] by INTERNET, the global forms a space, namely "cyberspace" (Cyberspace). 　

INTERNET is not only a network of space, it is also by the telephone system, the postal system, news media, shopping center, information center, a large system of audio and video communication system. From the functional point of view, it is not the simple addition of these subsystems, but one with the objectivity, global, parties polygon, interactive and real-time, compound management features such as non center, the new system more. I called the new system as "INTERNET", according to the analysis of context theory, we investigate the network case jurisdiction issues must be entered into the "INTERNET", "enter" is in order to "jump", and thus more objective analysis and discuss this issue. INTERNET environments are often has the following characteristics:

1, objectivity

INTERNET is a virtual space and physical space corresponding to each other. Although this space is not visible, but we have every hour and moment felt its presence, it is based on the computer terminal, cable, procedures and other hardware as a means, by electronic media are derived from a kind of objective existence, but it is absolutely different from the physical space. 　

2, global

It can be said that the INTERNET environment is born with global characteristics, no concept of territory in this environment, no boundaries of any national boundaries and area, it makes the global Internet users can closely together, thoroughly break the tangible world physical sense of the limit, this is also the root produces a large number of transnational legal problems. 　

3, interactive and real-time

The network is different from the common media lies in mutual communication, real-time, information dissemination quick, is INTERNET the characteristic, make people a lot of traditional "lonely watch" became agitated, life begins to become less stiff. 　

Non central 4, management

The real world is composed of different nations, countries on the basis of their enjoyment of the right to possession, the highest human, so as to achieve its field people, objects, events, behavior management, and protection of the domestic people. While the INTERNET environment is a no heart, no centralized, virtual the world we are equal to each other, the network space divided into a piece, is unthinkable, it is because of this, there will be called INTERNET environment will become the new "global civil society", will eventually realize people since ancient times for the "Datong world". [6]

The secret of the 5 parties, the multilateral and identity

The global INTERNET created the diversification of the main body, complicated, due to visit the URL at random, so the network disputes involving the parties may radiate, from different countries and regions, but also because of the identity of the parties out of nationality, domicile and other restrictions, become more covert, as the network in a sentence the saying "no one knows computer sitting opposite is a dog". 　

(two) INTERNET environmental jurisdiction according to the traditional challenges

It is because the INTERNET environment has the above properties, only produced a lot of contradictions and conflicts: the development of new technology industry and the traditional social order maintenance needs to balance; the interests of industry, national interests, social interests and the interests of individuals need to consider cultural differences of each country; moral need new coordination. [7] INTERNET environment on the basis of jurisdiction over the traditional impact and challenges are mainly embodied in the following aspects:

1, the jurisdiction of regional weakening fuzzy as well as the national judicial sovereignty

The traditional jurisdiction theory believes that the factors to be the exercise of the jurisdiction of the court on the basis of, must have two conditions: A the factor itself is relatively stable over time or space, at least can be determined between the factors, B and jurisdiction exist certain correlation.[8] the jurisdiction basis to determine the system is based on the national sovereignty and independence of jurisdiction, and the essence is the embodiment of national sovereignty in the judicial field, as judge Holms has pointed out: "the basis of jurisdiction is the physical space power".[9] but INTERNET is the global system for an open, no national boundaries clear division of on the Internet, people often with the help of digital transmission, can in the twinkling of an eye from thousands of miles away, even across countries, while his own without displacement change any space. In this virtual space, relative to the division of the world by right of jurisdiction and the jurisdiction of the court for a particular digital transmission is involved in the whole process or only to one or several links, but also into the jurisdiction area need to consider the question of.[10] it is the problem that IN The jurisdiction of TERNET user activity by sovereign countries is relatively weak. Each national jurisdiction of fuzzy partition, the judicial sovereignty is weakening. 　

2, the weakening of traditional jurisdiction basis and uncertainty

The traditional theory of personal principle, the principle and the principle of party autonomy, usually in the domicile, nationality, behavior, property, etc. the connection point as the jurisdiction basis. But in the network according to the relative weakening of these, and diversity, is not easy to be deterministic, for example in the network the parties may in one place travel the world each country's website, how to determine its domicile or residence? If the user is the application of the portable computer, so he can whenever and wherever possible landing sites, so how to determine the the shelter? Nationality is a legal relationship between a country's national and the environment of INTERNET, the identity of the parties is often hidden, so to determine the relative weakening of the nationality, the stage and complexity of network transmission, the infringement of diversification, is not easy to determine, for example, the transnational network libel around the world, all the users can login click browse, and therefore may in any to any country of the world occurred in the point that place of defamation results, but because of various countries give for defamation redress system design is different, the infringee often "forum shopping" (Forum shopping), increase the abuse of litigation and the conflict of jurisdiction, such as the UK as the law to give full legal protection to the victim, it becomes the "defamation of international". How to determine the infringement of [11] in this case? As for the network virtual property is protected by law, the legislation is still a blank, scholars are discussed. [12]

3, "the original is" theoretical predicament

In the traditional lawsuit, the plaintiff to the defendant has his domicile a suit in a people's court considered behoove and should be given priority principle. This is reflected "due process" principle in the procedural law, but also from the economy of litigation, evidence of convenience, decision system design for the execution point of doing. But in the network environment, the domicile of the defendant itself exists problems, the network activities should know his own behavior results will occur worldwide, but he often can not accurately foresee its activities directly or indirectly extends to the specific area. [13] and from the network infringement cases were often far apart, so if you continue to apply the "original jurisdiction theory", no matter from the angle of economics, or whether it is conducive to the recognition and enforcement of judgments in perspective, solutions often makes the judicial relief for increasing the difficulty and not conducive to the dispute the. 　

Facing the new challenges of network environment, the traditional jurisdiction theory should be how to deal with? It is necessary to first popular several new theories on the network case jurisdiction to review. 　

Three, about the network case jurisdiction of several new theories

(a) the Fourth International Space Theory

"Fourth space" theory is also called the "jurisdiction theory of relativity", is to America Dr. Darrel Menthe of the Stanford University as the representative proposed, his main view: network similar to Antarctica, outside space and the high seas of the three international space of Fourth International space. [14] should therefore be determined in this field, establish the principle is different from the traditional rules of the new jurisdiction, by comparison and analogy, he concluded that "the network space should also accept the international practice is similar to that of default, dominating the other three international space practice, the specific system (regime-specific) of the treaty to solve jurisdiction the right question. [15] any country can jurisdiction and the law applies to any network space and any activity, degree and manner of its extent and the person or the activities into the sovereign country can control network space suit. Cyberspace parties can through the network of contacts in the court, the court can also be executed through the network means. [16]

The author thinks that the theory captures the borderless INTERNET environment, characteristics of non centralization, this problem is solved only through the establishment of corresponding convention, to solve through international coordination. This is undoubtedly a very correct, but the network jurisdiction relativity and hope to technology as the standard, to solve the network technology itself brings difficulties, will be under the jurisdiction of the as the whole network space right size from each country contact and control network to decide, this is undoubtedly to the economic strength of the backing. "Technological hegemony" to reflect, is consistent with the interests of the developed countries, but it is for other backward technology a deprivation of national judicial sovereignty. But because of the international society on without a legislative authority to formulate corresponding regulations to identify "to the exercise of jurisdiction" under what circumstances a country to the network of contacts and control, so in practice will only by the judge's discretion, it is inevitable to make decision with the subjectivity and arbitrariness. There are likely to result in any country in the world to think of a behavior on Internet jurisdiction, this only makes the jurisdiction of Internet cases become more difficult. 　

(two) the new sovereignty theory

The theory is also called the "network autonomy", its main points: the network disputes, should get rid of the traditional conception of territorial jurisdiction, admitted that the network virtual space is a special region, and to recognize the existence of a very important legal boundary in the Internet world and the real world, if you want to enter the network region, must through the screen or password, once the virtual world to network, network law should be network of the world, and is no longer applicable laws of different countries in reality. Members of the [17] network and ISP to arbiter of disputes between the identity of the award, and implemented by the ISP, the network space will become a new global civil society (Global civil society), it has its own form of organization, standard of value, completely separate from the government and power have autonomy, ultimately it is development trend "network world". [18]

The author thinks that the "new sovereignty theory" emphasizes the network spatial novelty and self independence, doubts and defensive attitude to the reality of state power, worry free development of the involvement of state power will interfere with the network, they tried to self-discipline management network to replace the jurisdiction of traditional law, self judgment and ruling. Replace state judgment and remedy. [19] from the maintenance of network development point of view, this theory is valuable, but the so-called "network method" is ethical and technical standard mixture, although the industry technical standards may influence the moral and law in a certain extent, but they can never replace the law. Also the self-discipline management can not substitute for the relief of public force. "Network world" in view of the only people in the real world "Datong world" concept of the network only, too romantic, idealistic. Finally, any philosopher in the civil society are not exclusive political state, civil society and political state is the requirement of benign interaction between the two, keep the rational distance, forming a "wind, rain can enter, the king can not enter", "Caesar what Caesar, God God" pattern. Civil society and political state alone is a tyranny. 　

(three). The basis of jurisdiction theory

The theory is that: the exercise of jurisdiction on the basis of traditional court must have "the relative stability of the factor itself has the time or space, there is at least some degree of association" between the two conditions can be determined and the factors and jurisdiction, through to the site investigation that: Web site is relatively stable, it in the network space is relatively fixed, it changes to the server, need certain procedures, so in a certain period of time, it is possible to determine the. Position the URL in the network space is similar to the residence in the physical space position. Have a certain relationship. And the jurisdiction, especially have close full contact and provide the URL of the ISP area, at the same time. Activities related to other network participants, have contact with other participants in the jurisdiction. [20] to meet the above conditions, and therefore should be. As a new jurisdictional basis. 　

The author thinks, firstly the theory from the traditional jurisdiction according to that theory, specific analysis and investigation of the site characteristics, this approach is worthy of recognition, but also America judicial time have basis. As the concrete practice of jurisdiction basis, such as the MARITS INC V.CYBERGOLD.INC [22] INSEC SYSTEM V INSTRUCTION; SET INC [23] but we should see this theory in practice caused confusion in judicial practice: for example America interstate often web site as a "passive". And "interactive" web site, and according to the "due process clause", and "minimum contacts" standard does not give the jurisdiction of the former, and the the latter gave jurisdiction. How to identify a site is "passive". Or "interactive" web site? How to determine the jurisdiction of the court and the site reached the minimum contact? [24] is a controversial, which leads to the legal application of the uncertainty. 　

Secondly, although the site's position in the network is determined, but its status is not equal to the real space domicile or residence, America Georgia Institute survey in nearly twenty thousand people do that 60% people will provide a fake name, address registered on the Internet, telephone and other personal information. [25] this personal data uncertainties will undoubtedly determine dilute the site, so that the loss of the jurisdiction of utility. 　

Finally, from the technical considerations, Internet users can through technical means to hide the real Web site, so that the others through the very difficult. To determine the identity, such as login to the forum or OICQ can choose stealth landing. This makes identifying the source of the user becomes difficult. 　

An empirical analysis of four, the countries on the network case jurisdiction

Common network cases usually include network tort, network contract cases, the former can be divided into the network of intellectual property rights infringement case, the network personality right infringement cases, the domain name infringement cases, the latter mainly refers to the case of e-commerce contract. Through the analysis of the judicial practice of the network case jurisdiction for some countries to deal with, help clarify the trend of legislation in the future, after all, the law is a kind of conservative force, the theory is often Grey Owl, theory always in the evening to fly. It is often walk in the front of the judicial legislation. The following will all network case is divided into two parts the network right infringement case and the electronic commerce contract cases, the jurisdiction of countries to use in two cases were determined method. 　

(a) an empirical analysis of various countries about the jurisdiction of Internet infringement cases

1, America

American belongs to the federal state, each state will have the independent legislative power, resulting in USA natural is the theory of private international law's hometown, through the investigation and analysis of the network case jurisdiction to determine the state judicial practice, similar to the practice between nations. In addition America is the birthplace of the Internet, network technology country, so America court is likely to be made after the foundation of international conventions. Relevant network American interstate cases is very rich, involving EMAIL, BBS, CHAT ROOM,. Etc.. At present USA court tends to be the traditional long arm jurisdiction theory is applied to the network case, long arm jurisdiction (Long Arm Jurisdiction) refers to the domicile of the defendant was not in court state, but there is some minimum contact and the state (Minimum Contact), and the right to request generation and the related, the claim, the state for the defendant has personal jurisdiction (although not domiciled in the state), could issue a subpoena on defendants in state. [26]

USA court through the 1945 "international shoe co.v. Washington" case, the long arm jurisdiction theory, in this case, the Supreme Court held that meet the minimum contact causes the quantity and species depends on whether the contact action, if the action causes to the contact, even a single independent contact is sufficient to enable the defendant belongs to the state court personal jurisdiction. If the lawsuit cause not produced in the contact, you need to determine whether the association is continuous, system and substantial, that can make the associated in the absence of cause and litigation in the courts, to be fair and reasonable. [27] the minimum contact as the standard of long arm jurisdiction theory in the last century 80's and the development of "to accept", "minimum contact between the business activities" as the standard to identify and judge whether the defendant and the court. 　

Specific to the network case, in the Bensusan Restaurant Corp.V.King case [28], case is a network trademark infringement and unfair competition case, a New York state court to the defendant has a world accessible web site does not constitute the exercise of jurisdiction, if further accused not intended for the state of New York "" (Additional Activity), and from the state of New York profit, would not constitute the minimum contact for the state of New York, so New York state court refused to exercise jurisdiction over the case; Cybersell Inc.V.Cybersell Inc [29], the case is the network trademark infringement case, in this case, Arizona Court will address is divided into passive web site (Passive Site) and interactive web site (Interactive Site), and recognizing the case the defendant in the network address for the passive web site, to refuse to exercise jurisdiction; in the Inset System.Inc.V.Instruction Set.Inc [30], the case is the network intellectual property infringement cases, trial in the Connecticut court finds that the defendant set up site can be a state, people all over the world to visit, but the site advertising also tempted to Kang state repeated business (Solicitation of Business), from the The minimum contact to the exercise of jurisdiction. From the above three cases, we can see that the jurisdiction USA states about network case entitled to determine more of a mess, the same or similar cases may get different results in the jurisdiction of the state court of different. But in general, American judicial time has a long arm jurisdiction theory applicable to the network case jurisdiction determination on the tendency, but each court in the cognizance standard of minimum contact is not unified, and the essence of the theory is by the plaintiff sued to the court at first, and then by the the court ruled that if they are having jurisdiction in the case, is not the first clear formulation of written law cases shall be under the jurisdiction of the court what what. Whether the specific identification to reach the minimum contact, most closely associated with the method is very similar to the traditional, some viewpoints and some of the court, such as the site is divided into passive web site (Passive Site) and interactive web site (Interactive Site), the former on the latter refused to jurisdiction, jurisdiction is very enlightening the significance of. 　

2, Canada

Braintech Inc.V.Kostiuk (1999BCAO169) [32] is a BBS infringement cases, the plaintiff to the defendant in Texas USA lawsuit, the court finally to the default judgment is obtained in the form of 300000 dollars in compensation, the appeal to the court of appeal, court of appeal judgement: A summary trial judge did not examine whether there is between a party and the Texas the contact, "contact" is real and substantial, which he mistakes; B case that court of British Columbia (where the plaintiff company office) is the case only "natural court" (Natural forum). At the same time, the court of Appeal said: "in this case the defendant negative and transient. His remarks appeared in the cyberspace, this connection does not constitute a 'real and substantial connection' (Real and Substantial Contact) on USA court, nor does it constitute the basis for personal jurisdiction of a non resident." [33] in this case we can see, the Canadian court by USA greater impact, use the "real and substantial connection" to judge whether a court has the right to exercise extraterritorial personal jurisdiction, long arm jurisdiction theory is USA variants, and the court also contact according to the traditional physical space such as domicile of legal person (office location). 　

3, Australia

The jurisdiction of Internet infringement cases related to Australia is relatively small, the first jurisdiction on internet infringement cases in NSW judge Simpson (Simpson) Macquire Bank and Anor.V.Berg case, decided in July 2, 1999, it is a network of defamation case, judge Simpson that: Although the court has the power to limit or may in outside the jurisdiction of the behavior, but the court whether to exercise such rights are a discretionary behavior, the decision whether to exercise this power, the court must consider the implementation of such factors as the existence of more appropriate court judgment and make the. In a particular jurisdiction, maintaining an accessible website itself does not give the court to exercise the jurisdiction in the jurisdiction. Although [34] Australia about network tort judicial case is relatively small, but in this case, we can see that the Australian courts did not like America court, long arm jurisdiction theory extends to the network infringement, but the use of "forum non convenience" principles of self restraint on its jurisdiction. [35] this is how we solve the conflicts of the network case jurisdiction provides ideas. 　

4, China

China's court network infringement cases related to basic no, and the admissibility of the Department is the network infringement cases of domestic parties, through "Hengsheng v. Wang Hong case" [36], "Wang Meng and other six century interconnection writer v. [37] case", and "red v. Eastern information Service Corporation" [38], can be seen in China the court basically follows the infringement cases by traditional mode of jurisdiction infringement court, just explain what is infringement is considering the network factors, and in 2000 November, the Supreme People's Court issued "on the trial involving copyright disputes over computer network case law applicable to a number of issues of interpretation" in first rules: network copyright infringement cases of infringement or where the defendant has his domicile jurisdiction of the court. Tort includes the infringement of the web server, a computer terminal equipment is located. To determine the infringement and the domicile of the defendant, computer terminal equipment such as the plaintiff found infringing content location can be regarded as tort. In 2001 June, the Supreme People's Court issued the "Supreme People's Court on some issues of applicable laws relating to computer network domain name civil dispute cases the interpretation of" the second stipulation: infringement disputes involving domain names, governed by the infringement or where the defendant has his domicile of the intermediate people's court. To determine the infringement and the domicile of the defendant, the plaintiff found computer terminal equipment such as the domain name can be located as a tort. As the web server is located, identified object infringement computer terminal where the infringement, there is a certain reason, because any users through their own host access or contact with other sites, you must first contact with the Webpage or web server, only the first contact the server can only be based on the server's content, implementation tort must contact the server, so the server location is the place where the tort, the server where the court should have jurisdiction. 　

But this provision also has a lot of disadvantages, for example, infringement in can be divided into the place of tort and tort results happen, the place of tort can through the server location, tort computer terminal location to determine, and the result of tort occurred on the network has a global network, such as Internet defamation, infringement of right of reputation, anywhere with Internet all over the world may become tort. The territorial jurisdiction, if according to the jurisdiction of a connection point is the full scope of law, as the whole world, the connection point should be void, you should find the connection point in addition as the jurisdiction basis. [39] so in general, only when a tort results happen with special directivity determined jurisdiction sense, that is "convergence", it can be used as a connection point of the jurisdiction, and has the "divergent" region should not be under the jurisdiction of the connection point, only in very under special circumstances, such as it is difficult to find "connection point convergence", then we can consider "connection point of divergence". In accordance with the connection point to the infringement behavior results this way network tort cases in general should be used with caution. 　

Uncertainty in the tort and the domicile of the defendant's case, computer terminal equipment such as the plaintiff found infringing content location can be regarded as tort, the more likely that the plaintiff shall choose on their own favorable court, resulting in the defendant's unfair. 　

(two) an empirical analysis of the jurisdiction of cases of disputes about electronic contract

1, America

American in e-commerce jurisdiction issues, in 1999 July through the "Uniform Computer Information Transactions Law" 110th stipulation: the parties may agree to court in an exclusive, unless the choice unreasonable and unfair. The recognition of the online trading parties may choose a court by agreement way, but in the absence of effective business objective, and there are serious and unfair damage to the other party, the agreement is invalid. In addition the revised USA "Uniform Commercial Code" also stipulates that in addition to consumers in the contract should be taken into account in the provision of public policy and reasonable contact, no conditions allow the autonomy of the parties. In the absence of agreement jurisdiction of court, "Uniform Computer Information Transactions Law" did not make specific provisions, but a large number of America court case usually or in accordance with the long arm jurisdiction theory, the contract dispute case network is divided into the defendant in court to have actual business activities and no real business class two, for the first kind the court has jurisdiction, the defendant, and for the latter case, depending on the specific case by the court to decide. For example, distinguish the URL is interactive or passive, if more high interactivity, the business nature of the site is more obvious, the site operator will more easily be considered "to the" court, so to achieve the minimum contact standard, with long arm jurisdiction theory, the court to give jurisdiction, such as the 1996 CompuServe, Inc.V.Patterson case, the court considered the plaintiff, place of business established in the state of Ohio, does not constitute the Ohio court to exercise the jurisdiction basis, on the contrary, the defendant has the purpose through the Internet in Ohio in the transaction, is the court to exercise jurisdiction basis. [40] so it can be said USA jurisdiction in e-commerce disputes of the right to determine the main basis is the site administrator using the jurisdiction of the court option clause, let the customer know in electronic transactions, and through their own click read and agreed to determine the jurisdiction of the court to determine. This is the primary method to determine jurisdiction, followed by the judge according to the specific situation of combination of long arm jurisdiction theory to determine whether it has jurisdiction. 　

2, the European Union

The provisions of the EU jurisdiction over electronic commerce disputes about the right mainly submitted to the Council of the European Union "civil jurisdiction and the recognition and enforcement of judgments in the draft rules" in the European Commission in 1999, the draft in 2000 through December, and came into force in 2002 March. The law of the place where the reiterated the general jurisdiction principle, if the performance of the contract is different from the place of residence, the plaintiff may have the option in the domicile of the defendant's country or the performance of the contract in the courts; option also gives consumers: If enterprises use various means to engage in business or occupation activities in member country, or for the members to engage in this activity, and the range of consumer and business contract is also part of the activities, consumers can sue in the domicile of the court, may also bring a suit in court corporate domicile country, if consumers were prosecuted, so only by their country of habitual residence jurisdiction. [41] this can be said to be the embodiment of modern social protection of the weak trend in the legislation in China. 　

The new "Brussels Convention" to solve the Internet looking on the jurisdiction of electronic commerce provides a good example: hand made clear provisions on the jurisdiction clause, consumers can choose litigation in national courts; on the other hand, give according to the jurisdiction Internet contract choice of court terms to obtain the specificity and effectiveness, good balance of the interests of consumers and the website operator. 　

3, China

Our country has not announced a new law to determine the jurisdiction of electronic commerce, this is mainly because the electronic commerce development level in China is not very high, also mainly concentrated in the B to B (enterprise), and B to C (enterprise and consumer) transaction model accounts for the proportion is very small. Therefore the jurisdiction for the network electronic commerce disputes or "determine the applicable jurisdiction concerning foreign affairs of the people's Republic of China Civil Procedure Law" provisions in the fourth series: the parties may choose the jurisdiction by agreement in writing has practical connections with the dispute to the court of the place where the contract is signed, it can be, the performance of the contract, the subject matter of litigation, distrainable property is located. Electronic contract in the network signed, performance becomes fuzzy, such as online service transactions, trading software, the contract is established to shock the contract way in the network; commodity, service is directly through the network to transmit bits of the form, where is the signing of the contract? Where is the performance of the contract? So it is necessary to pass legislation on e-commerce, make up for the lack of legal. 　

Four, the conclusion

By combing and commenting on several new jurisdiction theory, combined with the judicial practices of various countries on the network tort, reviewing and comparing the right practice jurisdiction disputes business network, can draw following conclusions:

(a) in jurisdiction practice network case, in general can be divided into two kinds of ideas: the first approach is open mode, such as USA, Canada and other countries, by giving the judge discretion greatly, to solve the contradiction between the progress of science and technology and legal lag, judges according to the specific circumstances of each case, and taking the long arm jurisdiction theory as the basis, free to decide on whether the case has jurisdiction, the open mode and the common law tradition inseparable, is judge good quality, people's trust in the judicial final settlement decision. With the further development of network technology, the global convergence is also further strengthen, fusion, two big legal systems the convergence is also accelerating, although China is a civil law country, but also should learn from some of the practices of the Anglo American law system, such as the expansion of discretion of judges in network cases, to solve the contradiction between technology and law the. When the long arm jurisdiction theory American naturally has a kind of expansion, which is contrary to the judicial sovereignty equality, should give the sublation. Another idea is conservative mode, such as China, the European Union and other countries, the traditional right to jurisdiction theory and evidence given in the environment of INTERNET new interpretation, while absorbing the new trends of modern some, such as the adoption of legislation to strengthen the protection of the weak, the idea is worth using for reference, considering the the stability of the law, but on the basis of the traditional jurisdiction in some cases explain in the network environment, such as tort, therefore should not stick to the traditional, but should be combined with the cases, to explore new connections, and through international treaties, conventions for confirmation, which is the final solution to the fundamental network jurisdiction problem. 　

(two) the world has not formed the unified network case jurisdiction to determine standards, are at the stage of fumbling for jurisdiction standards of various countries, but the judicial practice in general all did not break away from the traditional jurisdiction theory, that is to say in the network case, the traditional jurisdiction theories have not been abandoned, just need to make the necessary changes. 　

(three) the jurisdiction of Internet cases is more complex than the real world case, it means that will produce a positive conflict of jurisdiction more, and the final solution is only the countries to strengthen cooperation, through the conclusion of international conventions, the international practice. As the British scholar Andrew Sparro said: the world of digital space is a space without boundaries, but not the geographical position, it is the root cause of the problem. When the Internet related dispute occurs, problems and law is not applicable, nor because neither party wants to resolve the dispute through legal channels, but because there is no clear legal provisions to determine the application of the law. [42]

(four) although the various countries legislation and court in judicial practice of network infringement cases, cases of electronic commerce contract jurisdiction is not consistent, but can be summed up in common, and these similarities likely will become the international convention, practice base. For the network infringement case infringement act, is should be considered, due to the infringement behavior results in the network generally has the "divergence", therefore should generally not be considered, in particular considering the place of tort, can investigate the infringement of network server location, tort computer terminal location and the site is interactive or passive type, with the court and whether tort substantially related factors. Secondly, in the face of "the original theoretical predicament is", introduced the plaintiff's residence jurisdiction. Introduction of this principle, whether from an economic point of view, or from whether it is beneficial to the recognition and enforcement of judgments in angle are conducive to the settlement of disputes. Is the first consideration should be given to the parties to the case of electronic commerce agreement jurisdiction, but in the concrete case to study the meaning of the parties is true, the format of the contract is valid; second, can be combined with the principle of closest connection through legislation or judicial decision by the judge in the court may be under jurisdiction of court; finally, introduce the European Union legislation model establishment is advantageous to the consumer court in consumer contracts, such as consumer home jurisdiction court.