Experts say there is no legal barrier to open individual domain names

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January 28 News, recently the state departments to increase the mobile phone and internet pornography information governance, China's domain name registration and management agencies China Internet Network Information Center (CNNIC) also issued a number of management initiatives, and constantly strengthen the domain name field of governance. However, the controversy about "whether the individual has the right to register and use the domain name" has also become the focus of many media and people's attention. Is there any legal barrier to open individual registered CN domain name? Professor Chen Jian of the Institute of Intellectual Property Rights, civil and commercial economic law

Individual registered domain name can be protected by law

It is understood that at present, China's relevant domain name registration and management of the normative documents, mainly by the original Ministry of Information Industry (now industry and Information Technology Department) promulgated the "China Internet domain name Management measures" (hereinafter referred to as "management measures", December 20, 2004 onwards) and China Internet Network Information Center made the " Rules for the implementation of the domain name registration of China Internet Network Information Center (hereinafter referred to as "implementation Rules", June 5, 2009). The rules of implementation 14th expressly stipulates that: "Domain name registration applicant (hereinafter referred to as the applicant) should be registered in accordance with the law and can bear the civil liability of the organization." "The implementation rules of the domain name application of the subject of this special provisions directly exclude individuals from the domain name application." However, rule 27th of the administration measures stipulates that "the domain name registered and used by any organization or individual shall not contain the following: ...".

From the content of the provisions, the "management measures" does not prohibit the registration of the use of domain names, but the implementation rules stipulate that the application of domain name registration should be "organization", which is tantamount to prohibiting individuals to register the use of the domain name, then, the individual has no right to register the use of domain

In this respect, Chen Jian, an associate professor, said that from the legal perspective, the upper law is superior to the subordinate law when the current position law conflicts with the upper law. The Ministry of Information Industry "management measures" of the legal effect, the legal level is higher than the China Internet Network Information Center "Implementation rules", so when the implementation of the rules and the management measures conflict, the implementation rules of the relevant provisions of the invalid, and should comply with the provisions of the administrative measures.

The Associate Professor Chen Jian explained that: whether the individual has the right to register the CN domain name should be based on the provisions of the "management measures", since the "management measures" does not prohibit the registration of individual domain names, then, in accordance with the "law does not prohibit that is allowed" principle of jurisprudence, individuals have indisputable registration, the use of CN domain

It is understood that in some arbitration institutions to accept the domain name dispute cases, the individual registered the use of CN domain name has been recognized. In the case of the 2007 China International Trade Arbitration Commission (Peng Wei), which applied for the transfer of irizar.com.cn domain names by ordinary netizens to the company, the Expert Group finally rejected its request and Peng Wei successfully saved its own CN domain name.

and from the judicial practice, the legal rights of the individual registered to use domain name have been supported and protected by all levels of courts (including the People's Court of Haidian District of Beijing, Beijing First Intermediate People's Court, and Peking Municipal High Courts). For example: Beijing First Intermediate People's Court in the verdict of a domain name dispute has been concluded ("2008" one in the beginning of the word 13,024th) pointed out that the court that "the Chinese Internet Domain Name Management method" 27th stipulates that any organization and individual registration and use of the domain name, shall not contain ' Against the basic principles established in the Constitution ' nine items, from the provisions can be seen that individuals can become domain name registrars. "," China Internet Network Information Center, the implementation of the rules of domain name registration "although in the fourth article stipulates that the domain name registration applicant should be registered in accordance with the law and can independently bear civil liability organizations. However, because the "Domain name registration rules" is less effective than the "China Internet domain name Management measures", the relevant provisions can not be applied. , the judicial protection of the legitimacy and legality of the personal registration of the domain names involved.

Open Personal Domain name registration is an international practice

Professor Chen Jian pointed out: "Whether it is legal, or judicial practice, the individual registered CN domain name has been recognized, and from the international practice and promote the development of the Internet, the opening of individual registered domain name has no delay." ”

First, it is an international practice to open up individual domain names. The world's countries and regions such as the United States, Britain, France, Germany, Australia, as well as Taiwan, China has opened the domain name registration to individuals, many countries in Asia, including Japan, Korea, Singapore, Hong Kong, Malaysia and so on have opened their own domain names.

Secondly, the registration of individual domain names does not contradict the current regulations. According to the Ministry of Industry and Information technology, "Non-operating Internet Information Services record management measures", individuals can start a website. And in the Ministry of Industry and Information technology "on the record policy and other questions" in the clear affirmation of the individual start-up site can apply for the record. Therefore, the individual cannot apply for the registration domain name, cannot create the real meaning personal webpage, also cannot undertake "the individual" on-line service and the trade, many excellent business opportunity also can lose.

Third, the open individual registered domain name is conducive to active prosperity of e-commerce. The advantage of electronic commerce relative to traditional business is very obvious, he not only can save the cost for the merchant, at the same time the low price also is welcomed by the broad masses of consumers especially young people. Therefore, we should perhaps have the courage to build a "free market" in the early period of reform and opening-up, allowing individuals to register domain names to promote the development of online "self-employed".

Chen Jian, an associate professor, said that personal registration of CN Domain name is not only related to personal interests, but also to society, the country, and the Internet is of great significance. A comprehensive survey of the development of the network, most of the world's web sites are individuals to establish, personal operations. However, because of the personal domain name registration in China, the provisions of the implementation rules and the "management measures" conflict, indeed to the real person to apply for registration of the domain name has brought a lot of confusion and inconvenience.

Finally, an associate Professor Chen Jian put forward his own proposal, that is, in the current real-name real-estate system to effectively effect the situation, China's domain name management agencies industry and information technology and China Internet Network Information Center should closely cooperate with the early revision of relevant regulations, policies, and clearly protect the legitimate rights and interests of Early formal for personal open CN domain name registration.