도메인이름 紛爭에 관한 國際栽判管轄

Jurisdiction in Domain Name Disputes - Overview of Korean Law -

In Korean law, there are only scant statutory sources on personal jurisdiction in civil and commercial disputes. In this background, article 2 of the Korean Private International Law delineates the method of finding or developing law in this area. According to article 2, courts should try to fill this gap by analogy from the venue provisions consisting of territorial standards, while considering the different implications of intemational jurisdiction as opposed to internal venue so as to differentiate rules of jurisdiction from rules of venue, Article 2 requires the courts to clarify the bases of jurisdiction, basically in terms of territorial contacts, and in exceplional cases in terms of a mixture of territorial contacts and policy reasons, Notably, it will not be meaningful to reiterate the language of article 2 without clarifying jurisdictional standards in terms of territorial contacts. Such court practice will fail to produce a set of clear and predictable legal standards and also fail to meet the legislative intent behind article 2. Since the amendment of Korean Private International Law in 2001, there has been a clear tendency in several umpublished lower court cases that compies with such demand as expressed in article 2. According to these judgments, lower courts tend to look for concrete criteria of special jurisdiction in terms of territorial contacts between the dispute and the forum. In the process of such judicial lawmaking the courts will in most cases ask what type of legal relationship is in dispute and which territorial contacts should be the key factor in cach type of case. In this regard, it is surprising to note that the Korean Supreme Court, in its hpweb.com decision in 2005, pursued and opposite way, Literally understood, this precedent requires the courts to focus on the location of evidences, instead of trying to localize the case. If the forum is the locus of most of the evidences on the merits, the court shall have jurisdiction unless there are extraordinary circumstances that shall lead the court to deny its jurisdiction. In this viewpoint, the hpweb.com judgment presents a général theory of personal jurisdiction which seriously underestimates the need of clear and predictable criteria of jurisdiction. This jurisprudence is out of line with the mainstream case law of the Korean Supreme Court that has developed so far. It is submitted that the preoedential value of this judgment should be narrowly construed so as to be confined to the specific facts of the case. The domain name can be a subject of two kinds of disputes, namely infringement of a trademark or another right committed by use of a domain name, and infringement of a right to own a domain name. If the court has special jurisdiction over either one of them, the court will also have jurisdiction over the traditional framework is not without a problem. First, the place of tort jurisdiction should be guarded against overextension. This jurisdictional basis may become more problematic when combined with jurisdiction over a related claim, which increases the importance of narrowing the place of tort concept. On the other hand, a problem is created if the tortfeasor files a lawsuit for a negative declaration of his own tortious liability at the place of tortious act at his choice, because it effectively defeat the policy of preference for the victim. The lower court judgments have tried to manage this problem by imposing purposeful availment standard as borrowed from Justice O Connor s plurality in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 115, 107 S.Ct. 1026, 1034. These precedents reason that jurisdiction may be asserted in the place of tortious result, only if the defendant has purposefully availed the privilèges or benefits of the legal system in that place by way of specific positive activity within or targeted at that place.