域名问题法律研究的回顾与反思——兼论法律对科技挑战的回应及其演进的逻辑

The Review and Reflection of The Legal Study on Domain Name

本文对域名问题的纠纷解决实践和理论研究从宏观方面作了全面的回顾和考察,认为域名的研究有一段时间曾走入误区,其深层原因在于对科技与法律的关系,法律的保守特性,权利的起源、生成和构造缺乏科学认识。最后从域名研究这一个案中思考法律应如何应对网络技术的挑战,法律在社会中演进的逻辑等带有根本性特征的法哲学问题。

The issue of domain name has once arisen heated and extensive law studies in the legal theoretical field. This article has no intention to further the study on the solution of the conflict between the domain name and traditional trade signs while looks at the issue of domain name from another angle so as to get different but compatible studying fruits. Along with relatively comprehensive retrospection and embedded review on practices about solutions of disputes, the legislative process and theoretical studying relating to the issue of domain name macroscopically, it concludes that the studying of the domain name ever goes astray. The underlying reason lies in the non-scientific understandings on the relationship between law and science and technology, the conservative characteristic of law and the origination, creation and construction of right. As a result, this article converts to ponder several jurisprudential problems, such as how law reacts to the challenges brought to by internet technology and the evolution logic of law in society.