인터넷에서의 국가관할과 국내법의 역외적용

The Internet, which transcends the limits of space, is not in the realms of the conventional legal systems constrained by borders and boundaries in the physical world. Therefore, the territorial principle of jurisdiction leads to significant challenges of how to confine jurisdictional power and who to exercise it on the internet. In particular, problems begin to arise in earnest in public international law sectors rather than in private international law governed by international jurisdiction and proper law. So far, starting from territorial principle to nationality principle, consecutively to protective principle, and to universality principle, jurisdiction has continuously expended its law enforcement power. In the same light, objective territorial principle and ubiquity principle try to constitute legalities of online activities based on traditional territorial principle mechanism that doesn’t draw territorial distinctions between where unlawful conduct was actually initiated and where it has actually taken place. But such legal interpretation of online activities implies possible overstretches of jurisdiction. Thanks to the very nature of the Internet, the act of both transmitting data and receiving them in the cyber space is not always done in the same territorial jurisdiction. On the other hand, domestic law enforcement authorities face the demand for extraterritorial application of domestic statutes to equally control Internet service providers at home and abroad since online services provided by foreign companies have direct effects on domestic users as well. In addition, if some administrative regulations such as limited real-name confirmation system impose burdens only on domestic businesses, they can entail reverse discriminations against online companies at home compared to those are abroad. So jurisdiction over online activities should be exerted in accordance with the nature of each case. More specifically, if a case involves too many different jurisdictions to apply the territorial principle, subjective constituents including actor’s predictability of the consequences caused by his or her conduct in cyber space and intention have to set limits on jurisdiction. Whereas, in the case that there is a need for jurisdictional stretch with insufficient elements failing to constitute traditional criteria for the territorial principle, it is required to exam the possibility of exterritorial applications of national statues. However, what matters most is to secure substantial power of law enforcement regarding unlawful activities on the Internet. Clearly, this cannot be achievable just by a simple theory of law or policy, but only by multifaceted elements including a state’s competitive power, the generality of the values supported by regulations, and international cooperation. Above all things, it is universal validity of administrative regulations on the Internet that is the key to both extraterritorial applications of national statues and substantial effectiveness of jurisdictional control. In conclusion, instead of myopic purposes, elaborated analysis and policy-makings are the prerequisites for the Internet regulations to lead the establishments of both legal norms in international legal systems and viable precedents in exterritorial applying of national statues which can be widely accepted as global standards.