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中文期刊篇目索引

摘要

本篇出處 軍法專刊 56:2 2010.04[民99.04] 頁135-152
篇名 論網際網路侵權行為之準據法--以美國選法理論為中心,兼評涉外民事法律適用法修正草案
作者 陳穎彥
中文摘要   近年來,網際網路蓬勃發展,其低成本、無時差、無國界等特性,帶動一 股網路新風潮,於此虛擬空間(Cyberspace)中產生之涉外侵權行為訟爭,因 屬跨國界之爭議,打亂了傳統選擇法律之適用原則,使案件準據法之抉擇更形 複雜化。 網路虛擬空間中發生涉外侵權行為爭議,因網路傳輸空間不受地域之限 制,網際網路侵權行為之行為地或所在地判斷顯得難以確認。是以,本文嘗試 從美國選法理論出發,復觀察我國現行涉外民事法律適用法暨修正草案,企圖 為網際網路侵權行為之準據法尋找適切方向,此即本文研究之目的也。
英文摘要   Long before the Internet arrived, International Private Law had developed a rich doctrine of law to define prescriptive, adjudicative and enforcement jurisdiction to restrict a sovereign's exercise of power. Traditionally, a sovereign's jurisdictional limit was defined by geography. However, in the virtual context of cyberspace, geography has no real significance. The emergence and growing popularity of cyberspace presents a number of social, legal, and logistical problems that are arguably unparalleled. While the increase in exposure to these problems has made them no longer novel, they remain unresolved. In the legal arena, the rise of cyberspace has raised a myriad of challenges in the areas of free speech, privacy, and intellectual property. The zeitgeist of the future will be virtual rather than physical. In the years to come, most human exchange will be continuous rather than sequential, consisting not of stuff but the stuff of which dreams are made. The old choice-of-law doctrines fail to provide any meaningful guidance in the virtual world because these doctrines depend on notions of physical location. Because there is no "there" in the virtual world, the doctrines are virtually useless. However, it ignores the fact that no matter how long an Internet user floats in the ether of electronic communication, she exists in the real world. Her reputation, privacy, economic well-being all are directly attributable to her concrete presence in the tangible world. Cyberspace is a "consensual hallucination", but even hallucinations occur in a particular, material place. In response to the perceived inadequacy above, commentators propose various evolutions in the law, such as creating a federal common law of the Internet or transforming medieval notions of a lex mercatoria into a compartmentalized law of the Internet. However, no easy solution to the problem has been found. In this regard, new and more flexible choice of law rules seems to be highly desirable. The purpose of this article is to assess if and to what extent it is possible to attribute a new meaning to too often datable applicable law principles.