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On August 22nd, 2022, the Supreme People's Court made a civil ruling No.42 of the Supreme People's Law (2022). Related links:

Supreme Court: The jurisdiction of cases involving the right to use the Internet should be based on Article 15 of the Judicial Interpretation of the Internet.

In the ruling of the case, the Supreme Law held that the court of the plaintiff's domicile had no jurisdiction over the dispute case of infringement of the right to disseminate works' information on the Internet for three reasons:

1. The judicial interpretation of the Supreme Law has made special provisions on the territorial jurisdiction of dispute cases that infringe on the right of information network communication.

"the Supreme People's Court on the application of

The "information network tort" in Article 25 of the Interpretation of the Civil Procedure Law is aimed at the tort that occurs in the information network environment and is implemented through the information network, and is not limited to specific types of civil rights or rights. The difference is that Article 15 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes over Infringement of Information Network Communication Right (hereinafter referred to as the Provisions on Information Network Communication Right) is aimed at the specific types of civil rights of information network communication right and is a special provision regulating the jurisdiction of civil cases such as disputes over infringement of information network communication right. When determining the jurisdiction of civil dispute cases infringing on the right of information network communication, it should be based on Article 15 of the Provisions on the Right of Information Network Communication.

2. The territorial jurisdiction of dispute cases infringing on the right of information network communication shall be based on the principle of the place of infringement and the defendant's domicile.

Article 15 of the Regulations on the Right to Disseminate Information on the Internet, which came into effect on June 65, 438+03 +438+01October 65, stipulates that "the location of the computer terminal and other equipment where the plaintiff found the infringing content" can only be identified as the infringing location under special circumstances that "the infringing location and the defendant's domicile are difficult to determine or are outside the country". In 2020, the judicial interpretation was revised, and the above-mentioned article 15 was not revised, but it continued to be implemented.

3. In the case of infringement of the right of network information dissemination, it is not appropriate to take the place where the infringement result occurs as the basis for determining jurisdiction.

Based on the nature and characteristics of information network communication right, once the infringement of information network communication right occurs, it will lead to "the public can get the works at the time and place they choose". The geographical scope involved in the infringement result is random and extensive, so it is not a fixed place and should not be used as the basis for determining jurisdiction.

This ruling of the Supreme Law overturns the ruling rules of local courts that have been widely applied to the territorial jurisdiction of disputes over the right to disseminate network information for many years. Prior to this, local courts generally recognized that the plaintiff's domicile was the place where the infringement occurred, and the court of the plaintiff's domicile had jurisdiction over the dispute cases of infringement of the right of information network communication. For example, Article 17 of Answers to Several Questions on the Application of Laws in Filing a Case (II) issued by the Beijing Higher People's Court on October 20th, 20 19, understands network infringement as follows: "The scope of application of Article 25 can be applied to the interpretation of the Civil Procedure Law, except for disputes that infringe on the right to spread information on the Internet and civil disputes that use information networks to infringe personal rights. Unfair competition disputes involving online commercial defamation disputes and fake and shoddy disputes can also be applied, but they should meet the conditions of' using information network carriers to commit infringement through information networks such as uploading, downloading and linking'. " In the above-mentioned case (2022) No.42 under the jurisdiction of the Supreme People's Court, the Beijing Higher People's Court held that this case should not be transferred to the Beijing Internet Court, the court where the defendant is located, and then submitted to the Supreme People's Court for designated jurisdiction according to law.

After searching, the author found that the above case is not the first time that the Supreme Law has defined the scope of "information network infringement". By combing the judicial interpretation and judgment documents issued by the Supreme Court in recent years, and the series of "Understanding and Application of Judicial Interpretation" compiled by various business departments of the Supreme Court, this paper probes into the opinions of the Supreme Court on the territorial jurisdiction of "information network infringement".

First, the Supreme Law has made it clear that "information network infringement" includes infringement of the right to disseminate information on the Internet.

Article 15 of the Regulations on the Right of Information Network Communication, which came into effect on June 65, 438+03, stipulates: "A civil dispute case that infringes on the right of information network communication shall be under the jurisdiction of the people's court in the place where the infringement is committed or where the defendant has his domicile. Infringement sites include the locations of network servers, computer terminals and other equipment that carry out the alleged infringement. If the place of infringement and the defendant's domicile are difficult to determine or are outside the country, the place where the plaintiff found the infringing content, such as a computer terminal, can be regarded as the place of infringement. " In 2020, the judicial interpretation was revised, and the content of this article has not been revised, and it will continue to be implemented.

Article 24 of the Interpretation of the Civil Procedure Law, which came into effect on February 4, 20 15, stipulates that "the place where the infringement acts occur as stipulated in Article 29 of the Civil Procedure Law includes the place where the infringement acts occur and the place where the infringement results occur", and Article 25 stipulates that "the place where the information network infringement acts includes the place where the computer and other information equipment commit the alleged infringement acts, and the place where the infringement results occur includes the residence of the infringed person". In 2020 and 2022, the judicial interpretation was revised twice, but the contents of the above two clauses were not revised and continued to be implemented. Article 29 of the Civil Procedure Law stipulates: "A lawsuit brought for infringement shall be under the jurisdiction of the people's court in the place where the infringement occurred or the defendant's domicile".

On March 20 15, the book Understanding and Application of Judicial Interpretation of the Civil Procedure Law of the Supreme People's Court was written by "the Supreme People's Court Leading Group for Implementing the Revised Civil Procedure Law", which gave an answer to Article 25 of the Interpretation of the Civil Procedure Law on the territorial jurisdiction of information network infringement: "The place where the information network infringement was committed includes the location of information equipment such as computers where the alleged infringement was committed. The place where the infringement result occurs includes the domicile of the infringed person, which is consistent with the provisions of Article 15 of the Dispute Provisions on Infringement of Information Network Communication Rights, and defines the place where the infringement of network information is implemented and the place where the infringement result occurs. " Regarding the jurisdiction of civil disputes that infringe on the right of information network communication, the Supreme Law also makes it clear in this book: "In the process of drafting this judicial interpretation, there are also views that according to the above explanation (referring to the interpretation of the right of information network communication, the location of equipment accused of infringement, such as network servers and computer terminals, can be defined at will, and computers have the characteristics of convenient movement, and any place can be regarded as the place of infringement, which is also an unavoidable problem. It also stipulates that' the place where information network infringement is carried out includes the location of information equipment such as computers where the alleged infringement is carried out, and the place where the infringement result occurs includes the domicile of the infringed person' in order to determine the jurisdiction'.

In June 2022, the book Understanding and Application of Judicial Interpretation of the New Civil Procedure Law of the Supreme People's Court, compiled by the Office of the Leading Group for the Implementation of the Civil Code of the Supreme People's Court, once again answered the jurisdiction of civil cases infringing on the right of information network communication, and the content of the answer remained unchanged compared with the above-mentioned version of 2065438+March 2005.

Article 15 of the Regulations on the Right of Information Network Communication was implemented before, and Article 25 of the Interpretation of Civil Procedure Law was implemented after. Both judicial interpretations have been revised, but the contents of these provisions have not been revised. According to the Supreme Law's understanding of Article 25 of the Interpretation of the Civil Procedure Law, the "information network infringement" stipulated in Article 25 of the Interpretation of the Civil Procedure Law clearly includes the dispute cases that infringe on the right of information network communication, and shall be under the jurisdiction of the court of the plaintiff's domicile.

In fact, the typical cases issued by the Supreme Law have also clarified the territorial jurisdiction of civil cases that violate the right of information network communication. The Supreme Law can be found in the Annual Report on Intellectual Property Cases in the Supreme People's Court (20 19) (hereinafter referred to as the Annual Report on Intellectual Property Cases of the Supreme Law) and the Summary of Judgments of the Supreme People's Court Intellectual Property Court (20 19) (hereinafter referred to as the Summary of Judgments of the Supreme Intellectual Property Court). In the civil ruling of this case, the Supreme Law holds that: "The Civil Procedure Law explains that the information network infringement stipulated in Article 25 has a specific meaning, which means that the infringer uses the Internet to publish information that directly infringes on the legitimate rights and interests of others, mainly aiming at the behavior that infringes on others' personal rights and interests and the behavior that infringes on others' right to disseminate information through the information network, that is, the implementation of the alleged infringement and the occurrence of damage results are all on the information network, but it is not the network-related infringement and the occurrence of damage results that belong to the information network infringement."

Two, other judicial interpretations issued by the Supreme Law on the "special provisions" of the territorial jurisdiction of "information network infringement"

As mentioned above, although the Supreme People's Court (2022) No.42 case and the Supreme People's Court's regulations and trial rules are different in legal application, with the latest judgment of the Supreme People's Court coming into effect, this case still has strong reference significance. Following the judgment that "stipulating the right of information network communication is a special provision to regulate the jurisdiction of civil cases infringing on the right of information network communication", the author searched for "special provisions" on "information network infringement" in other judicial interpretations promulgated by the Supreme Law.

1. personality right dispute

Article 2 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes over Personal Rights and Interests by Using Information Networks, which came into effect on June 65, 438+04+00, stipulates: "A lawsuit brought against personal rights and interests by using information networks shall be under the jurisdiction of the people's court in the place where the infringement is committed or where the defendant is domiciled. The place where the infringement occurred includes the location of the computer and other terminal equipment where the alleged infringement occurred, and the place where the infringement result occurred includes the domicile of the infringed person. " In 2020, the judicial interpretation was revised and Article 2 was deleted.

Therefore, the Supreme Law has not made "special provisions" through judicial interpretation for disputes caused by using information networks to infringe upon the personal rights and interests of others. Article 25 of the Civil Procedure Law shall be applied as a "general rule" and shall be under the jurisdiction of the court where the plaintiff has his domicile.

2. Intellectual property infringement disputes

(1) Copyright infringement dispute

In addition to the right of information network communication, acts infringing other copyrights or neighboring rights can also be carried out through the information network, such as disputes over the right of publication of works, the right of signature, the right of broadcasting, the right of performers, and the right of organizing broadcasting. Article 4 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Copyright Civil Disputes (hereinafter referred to as the Interpretation of Copyright Law), which came into effect on June 5438+1October 65438+1October 5, 2002, stipulates: "A civil lawsuit brought for infringement of copyright shall be brought by the place where the infringement occurred, the place where the infringing copy was stored, the place where it was sealed up and detained. In 2020, the judicial interpretation was revised, and the content of this article has not been revised, and it will continue to be implemented.

The Interpretation of Copyright Law, as a "special provision", does not specify the geographical jurisdiction connection point of "the place where the infringement results occur", so the plaintiff's location cannot be used as the basis for determining jurisdiction. There is no specific provision in the Interpretation of Copyright Law on the determination of "the place where the infringement is committed". As a "general rule", it applies to the Interpretation of Civil Procedure Law, including the location of computers and other information equipment in the place where the alleged infringement is committed.

(2) Trademark infringement disputes

Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes (hereinafter referred to as the Interpretation of Trademark Law), which came into effect in 2002, stipulates that "a civil lawsuit brought for infringement of the exclusive right to use a registered trademark shall be under the jurisdiction of the people's court at the place where the infringement is committed, where the infringing goods are stored, or where the seizure is made, or where the defendant is domiciled". In 2020, the judicial interpretation was revised, and the content of this article has not been revised, and it will continue to be implemented.

As a "special provision", the jurisdiction connection point determined by the interpretation of trademark law does not include "the place where the infringement result occurs". Accordingly, the court of the plaintiff's domicile has no jurisdiction over the lawsuit against the infringement of the trademark right of the information network. Regarding the "place where the infringement is committed", the interpretation of the Civil Procedure Law as a "general provision" also applies, including the location of the computer and other information equipment where the alleged infringement is committed.

(3) Patent infringement disputes

Commodities infringing patent rights can be sold or promised to be sold through information networks. 200 1 Effective "Several Provisions of the Supreme People's Court on Applicable Laws in the Trial of Patent Disputes" (hereinafter referred to as "Patent Law Provisions") stipulates in Article 5: "A lawsuit brought for patent infringement shall be under the jurisdiction of the people's court where the infringement occurred or where the defendant lived. Infringement includes: the place of manufacture, use, promised sale, sale or import of the product accused of infringing the patent right of invention or utility model; The place where the patented method is used, and the place where the products directly obtained according to the patented method are used, promised to be sold, sold and imported; The place where the act of manufacturing, promising to sell, selling and importing the patented product of design takes place; Places where counterfeiting other people's patents is carried out. The place where the infringement result of the above infringement occurred ". In 20 13, 20 15 and 2020, the judicial interpretation was revised three times, but the content of this article was not modified and it continued to be implemented.

As a "special provision", the provisions of the patent law include the jurisdictional connection point of "the place where the infringement result of the infringement occurs". But the plaintiff's domicile cannot be the result of patent infringement. 20 19 the main points of the supreme intellectual property court's judgment and the annual report of the supreme intellectual property case 20 19 pointed out: "Information network infringement, as a jurisdictional connection point, refers to the infringement completely implemented on the information network; If the infringement is only partially implemented online, it does not constitute the above-mentioned information network infringement. " A typical case (20 19) is in the civil ruling. The Supreme People's CourtNo. 13, the Supreme People's Court ruled: "In the transaction process, the website and WeChat are only the media for both parties to trade, and the accused infringer can't carry out the alleged patent infringement only through the Internet. In the contemporary society where the Internet is highly popular, if a website platform appears in the facts of a case, or both parties communicate with each other through Internet-related means such as WeChat, or both parties trade the alleged infringing products through an information network platform, it is deemed to constitute information network infringement, which is too broad and does not conform to the understanding of the scope of Article 25 of the Civil Procedure Law and the original intention of legislation ...... The place where the infringement result occurs should be understood as the place where the infringement direct result occurs, and it cannot be regarded as infringement just because the obligee thinks that it is damaged.

(D) Internet domain name infringement disputes

200 1 The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes involving Computer Network Domain Names (hereinafter referred to as the Interpretation of Network Domain Names) stipulates in Article 2: "Infringement disputes involving domain names shall be under the jurisdiction of the Intermediate People's Court where the infringement occurred or where the defendant lived. If the place of infringement and the defendant's domicile are difficult to determine, the location of the computer terminal and other equipment identified by the plaintiff can be regarded as the place of infringement. " In 2020, the judicial interpretation was revised, and the content of this article has not been revised, and it will continue to be implemented.

The domain name interpretation as a "special provision" does not define the scope of "infringing place", and the provisions of Articles 24 and 25 of the Civil Procedure Law as a "general provision" should be applied. The territorial jurisdiction connection point of domain name dispute infringement includes the plaintiff's domicile.

3. Unfair competition disputes and monopoly disputes

Acts such as counterfeiting, false propaganda, infringement of trade secrets, commercial slander and unfair competition on the Internet can all be implemented through information networks. "the Supreme People's Court on Application" was implemented on March 20, 2022.

Regarding monopoly disputes, abuse of market dominance may occur in information networks, such as "Tik Tok v. Tencent monopoly dispute case". Article 4 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Caused by Monopoly, which came into effect on 20 12, stipulates: "The territorial jurisdiction of monopoly civil disputes shall be determined according to the specific circumstances of the case and the provisions of the Civil Procedure Law and relevant judicial interpretations on infringement disputes and contract disputes." In 2020, the judicial interpretation was revised, and the content of this article has not been revised, and it will continue to be implemented. Accordingly, the jurisdiction over the implementation of monopolistic behavior through information networks should be directly determined by applying the provisions of Articles 24 and 25 of the Civil Procedure Law.

4. Network tort liability disputes

The legal basis for dealing with the dispute of network tort liability is mainly the article1194-1197 of the Civil Code, e-commerce law, network security law, consumer rights protection law, etc. The Supreme Law has not yet issued relevant judicial interpretations to make "special provisions" on the territorial jurisdiction of network tort liability disputes.

Third, the Supreme Law has made it clear in the Provisions on the Cause of Action of Civil Cases that the geographical jurisdiction of the cause of action related to "information network infringement" includes "the place where the infringement was committed and the place where the infringement result occurred"

202 1, 1 1 Understanding and Application of the Provisions on the Cause of Action of New Civil Cases in the Supreme People's Court was compiled by the Supreme People's Court Research Office. The publication notes record: "This book is based on the three-level cause of action, and it is elaborated from four aspects: interpretation, jurisdiction, application of law, and issues that should be paid attention to when determining the cause of action."

The author finds that, according to the explanation in the section "Understanding and Application of Articles", disputes over personality rights, copyright infringement, trademark infringement, patent infringement, network domain name infringement, unfair competition, monopoly and network infringement liability may involve the geographical jurisdiction of the cause of action of "information network infringement", and the provisions of general civil tort disputes, namely Article 29 of the Civil Procedure Law and Article 1 of the Interpretation of the Civil Procedure Law, can be applied. Although the Interpretation of Copyright Law, the Provisions on the Right of Information Network Dissemination and the Interpretation of Trademark Law do not stipulate that "the place where the infringement result occurs" is the connection point of territorial jurisdiction, these "special provisions" do not exclude the application of territorial jurisdiction provisions for general civil tort disputes.

Four, the Supreme Law of the business departments of the "information network infringement" territorial jurisdiction of the legal application differences need to be further resolved.

Through the above combing, it is not difficult to find that there are differences in the application of law in the territorial jurisdiction of "information network infringement" by the business departments of the Supreme Law, which are as follows:

1.(2022) The judgment rules established in the No.42 document of the Supreme Law are inconsistent with the understanding and judgment rules of the articles previously issued by the Supreme Law;

2. It is not clear whether the geographical jurisdiction connection point between copyright infringement dispute and trademark infringement dispute includes "the place where the infringement result occurs".

20 19 10: the first article of the implementation measures of the Supreme People's Court on establishing a dispute settlement mechanism for the application of law stipulates: "the judicial Committee of the Supreme People's Court is the leading and decision-making body for the settlement of disputes over the application of law in the Supreme People's Court. The Supreme People's Court Judicial Management Office, various business departments in the Supreme People's Court and China Applied Law Society provide services and decision-making reference for the decision-making of the CRIC according to the needs of resolving differences in the application of law, and are responsible for implementing the decision of the CRIC "; Article 2 stipulates: "If any of the following circumstances is found in the trial of a case, all business departments in the Supreme People's Court shall apply to the Audit Office to resolve the differences in the application of the law: (1) There are differences in the application of the law in the effective judgment of the Supreme People's Court; (2) The judgment result of the case under trial may be different from the applicable principles or standards of the law determined by the effective judgment of the Supreme People's Court "; Article 11 stipulates: "The decisions made by the Audit Committee on the differences in the application of the law shall be implemented with reference by all business departments, local people's courts at all levels and special people's courts in the Supreme People's Court in the process of trial execution".

It is not clear whether the Supreme People's Court (2022) No.42 ruling belongs to the decision made by the Supreme Judicial Committee after discussing the differences in the application of the law. The differences in the application of the above-mentioned laws need to be further clarified by the Supreme Law in an appropriate form and scope, so that the parties can sue and the people's courts at all levels can refer to them.