명예훼손의 국제재판관할과 준거법 - 일본의 관련 재판례를 소재로 -

With the development of the IT, international torts, especially defamation, including invasion of privacy, can spread more rapidly than physical newspapers or traditional broadcasting with limited readers or audiences, and as a result, the damage can spread to many countries. Accordingly, defamation via the Internet or in the cyberspace raises various issues regarding the determination of international adjudicatory jurisdiction and governing law. This article introduces and evaluates the attitude taken by Japanese courts in relation to international jurisdiction, focusing on the issue of "special circumstances" stipulated in Article 3-9 of the Japanese Civil Procedure Act, which transposed the Japanese version of the forum non conveniens, and introduces and evaluates how the special connection rule for defamation is applied in the Japanese courts and what the issues are in relation to the governing law.
Regarding the Japanese Supreme Court's defamation ruling involving Universal, a Japanese company engaged in pachinko-related businesses, and its president, this article shows that the ruling was problematic because of the weight given to the existence of a related prior lawsuit in the Nevada state court and the requirement of a factor similar to foreseeability. The Tokyo District Court case involving Rakuten and the representative of Rakuten suggests that it is undesirable to state that there are no special circumstances when considering all the circumstances, without specifically analyzing the special circumstances individually. The case also raises the issue of the degree of proof in determining tort jurisdiction.
As for the cases related to the governing law, this article introduces and evaluates the issues involving the governing law in defamation cases under the old Japanese conflict of laws Act, i.e., Horei, and the Rakuten decision under the new Japanese conflict of laws Act. The Tokyo District Court case dealing with defamation of a horse jockey under Horei suggests that in the case of defamation by a traditional newspaper article, if the distribution of the newspaper is accidental, it is difficult to consider it as a place of injury. Finally, with respect to the governing law issue in the Rakuten case, this article introduces the theories regarding the difference between the governing law of defamation and that of infringement of privacy, and suggests that they are adjacent and that it is preferable to view the governing law of defamation as the governing law of privacy. Additionally, this article confirms that it is necessary to keep in mind the opinions of the eclecticism in Japan. This article also outlines factors that should be taken into account when legislating on defamation in the future revision to the applicable law area in the Korean Private International Law Act.