Cybercrime jurisdiction

The principles that govern a sovereign’s exercise of jurisdiction to prohibit conduct and to sanction those who violate such prohibitions are well-established as to conduct occurring in the real, physical world. These principles evolved over the last several millennia, as law increased in sophistication and life became more complex. Real-world crime is, almost exclusively, a local phenomenon; the perpetrator(s) and victim(s) are all physically present at a specific geographical point when a crime is committed. The principles that govern the exercise of criminal jurisdiction are therefore predicated on the assumption that “crime” is a territorial phenomenon. Cybercrime makes these principles problematic in varying ways and in varying degrees. Unlike real-world crime, it is not physically grounded; cybercrime increasingly tends not to occur in a single sovereign territory. The perpetrator of a cybercrime may physically be in Country A, while his victim is in Country B, or his victims are in Countries B, C, D and so on. The perpetrator may further complicate matters by routing his attack on the victim in Country B through computers in Countries F and G. The result of these and other cybercrime scenarios is that the cybercrime is not committed “in” the territory of a single sovereign state; instead, “pieces” of the cybercrime occur in territory claimed by several different sovereigns.     

对网络侵权案件的司法管辖权

网络空问的存在及其全球性、管理非中心化的特点,使国际私法中司法管辖权发生动摇,为此,各国都在进行探索,但做法不一,由此在司法实践中引起了一定的混乱.为了探寻新的管辖模式,学者们提出了管辖权相对论、网址来源国法规则、国际礼让原则、最低限度联系原则等不同的观点.针对这种情况,笔者提出了解决网络管辖权争议的几点设想,即充分考虑网站的互动性、限制网络以外的促销或广告、慎选交易对手所居住的地区、尽量利用契约加以约定,注意广告的内容与免责声明等.     

Extraterritorial criminal jurisdiction

Documents

Extraterritorial criminal jurisdictionCouncil of Europe, European Committee on Crime Problems     

论仲裁员的管辖权与可仲裁性问题

针对仲裁员的管辖权与可仲裁性这两个容易混淆的问题,结合有关国际公约和各国法律分别进行深入探讨,并对中国当前存在的问题提出了建议.     

United States' and Australian principles on internet jurisdiction: A case for Australia to consider United States' hegemony on jurisdiction

The United States and Australia have been facing the issue of internet jurisdiction. The United States is an epitome of a country that has considered the challenges posed by the internet to the traditional law. It has developed its own tests to help resolve the issue, which have evolved over time and in comparison with other jurisdictions, and it has been successful. Conversely, the Australian legal system is in a stage of infancy regarding such challenges and has developed its own approach. This paper focuses on the anomalies between the United States' and Australian principles or approaches to internet jurisdiction by analysing and discussing the three leading cases that are benchmarks in the respective jurisdictions. Finding the fundamental difference between the two approaches, the paper elucidates the United States hegemony on internet jurisdiction by comparing the shortcomings of the respective cases. Finally, this paper makes a case for the Australian courts to consider an approach based on the one practised by the United States courts to tackle the ever-evolving issue of internet jurisdiction.     

香港的海事审判管辖权

根据香港高等法院法令第12条的规定,介绍了香港海事法院的管辖事项的范围、管辖权的行使方式、提出管辖权异议的理由,以及香港海事法院的收费标准等。     

The effect of transplanting legislation from one jurisdiction to another

The hypothesis of the article is that legal transplants are a haphazard means of legislating, whereby a complex and difficult situation arises if the drafter cannot harmonise the laws being transplanted with that of the recipient country.     

试论国际刑事管辖权——兼谈对我国的启示

国际刑事管辖权是国家之间确立的对国际犯罪进行缉捕、起诉、审判和惩处的重要管辖体系。本文首先论述了传统的四种国际刑事管辖权,即属地管辖权、属人管辖权、保护性管辖权和普遍管辖权。接着本文阐述了前南国际刑事法庭和卢旺迭国际刑事法庭对国际刑事管辖权的发展,然后,本文分析了《国际刑事法院罗马规约》对国际刑事管辖权的挑战。最后,本文分析了我国的从中引发的相关启示。     

Legal jurisdiction over malware-related crimes: From theories of jurisdiction to solid practical application

As far as malware-related crimes are concerned, extra territorial jurisdiction and the law of extradition need one another to work perfectly, but there has never been a standard universal rule governing them. While Universality Principle can be argued to be the most ideal solution to the problem, it is opposed by the supporters of the notion of self-regulation of the internet, not to mention it lacks the required universal support. Thus the determination of the issues has to be based on the analysis of existing measures of practical applications.     

A rational jurisdiction for cyber terrorism

Cyberspace is a cross-national world that transcends geopolitical national borders. Jurisdiction is the focal point for any dispute arising in the international arena, because it determines which state court has the authority to settle a dispute. The objective of this paper is to analyse territorial and universal jurisdiction principles which can be specifically related to cyberspace to determine which of them is best suited to providing the appropriate jurisdiction in combating cyber terrorism and how conflicts arising between them can be settled. The transnational nature of cyber terrorism offences leads to jurisdictional complexity, thereby investigation and prosecution is difficult. Lack of harmonisation in legislating among countries leads to difficulty in investigation and prosecution of cyber terrorism offences. This paper notes that universal jurisdiction is the most feasible and effective method to deter cyber terrorism.     

论海盗罪普遍管辖权机制的局限性与变革

对国际社会来说,海盗仍然是一种严重威胁,尤其是在索马里地区,海盗异常猖獗。由于海盗对国际贸易和世界安全的破坏,对海盗罪的普遍管辖权已得到各国的普遍承认,但现行国际法关于海盗罪的规定却存在许多＂空白＂,普遍管辖权不能涵盖所有的海盗行为,因此,国际法应该进行相应的变革以应对海盗的威胁。这些变革应包括对海盗罪重新定义,建立危险海域的护航机制,推动区域性打击海盗机制的建立及由安理会提供必要的授权。