A Study On Immunity From Execution Of State Property

State immunity is a complex issue involving public international law, private international law and international economic law. The disputes between a country and foreigners increase when they communicate more. In the circumstances, the status of foreign sovereign state in the domestic courts has become a very important problem, especially immunity from execution against state property. The influence of attachment and execution of foreign state property is more direct than that of immunity from jurisdiction. Therefore, the research of immunity from execution is particularly imperative when China is being prepared to enact law of state immunity. This dissertation focuses on the immunity from execution of state property. Logically, after discussing the general aspect of immunity from execution, the dissertation discusses waiver of execution immunity, exceptions of execution immunity and execution immunity of specific categories of property sequentially. Conclusively, it gives feasible and reasonable suggestions on legislation of immunity from execution in China.This dissertation consists of five chapters apart from introduction.Chapter ? mainly discusses the general aspect of state immunity from execution which includes the theoretical basis of execution immunity, the relationship between immunity from jurisdiction and immunity from execution, and the separation of power between administrative department and judicial department. Section one firstly defines the immunity from execution, which including immunity from pre-judgment and post-judgment measures of constraint. Secondly, it explicates the background and causes of the shift of different countries' attitude towards immunity from execution, of which the main reasons are the necessity to balance the interests of States and private one and the relationship between territorial jurisdiction and immunity. Second section analyzes the differences between jurisdiction immunity and execution immunity, and finds the reasons why immunity from execution is applied more carefully than immunity from jurisdiction. Section three discusses the separation of power between administrative department and judicial department.Considering the potential outcome of the immunity from execution, administrative department always intervene the immunity of foreign states. In order to avoid the conflict of judgments and the great pressure to the administrative department, the decision of immunity should depoliticize.Chapter ? focuses on waiver of execution of immunity, and it chiefly introduces subjects, forms, timing and the withdrawal of waiver. Only the qualified and authorized subject can waive the Immunity from execution in an appropriate manner. For one thing, who can waiver immunity should firstly enjoy the immunity. For the other thing, the waiver should be authorized. Express waiver, no need to be written, can be made by international treaty, a written contract or statement submitted to the court, while implied waiver is full of controversy. According to the legislation and practice, states will not be considered to waive the immunity by instituting the proceeding or failing the appearance in the court. Whether state's agreement to arbitration has implied the waiver of execution immunity is under Controversy, so the states should pay attention to the opinion of different court. Meanwhile, any withdrawal of the waiver may purport to effect except in accordance with the terms of the waiver. Furthermore, immunity from execution shall be invoked timely, or it can be considered as waiver in the court.Chapter ? discusses the exceptions of execution immunity. The exceptions affects the interests of parties as it can execution the property of states. This dissertation mainly introduces and analyzes the exception of commercial asset. As the exception recognized by many countries, the definition of commercial asset is of great importance. Firstly, most countries take the purpose of commercial assets as the standard while the minor ones take the nature standard. Secondly, there is no consensus about the nexus requirement. Thirdly, most legislation requires the property are "in use or intended for use" for commercial purpose. Actually, all of these requirements are good for the states to enjoy the immunity, which is a reflection of the strict attitude towards immunity from execution. Additional, it also analyzes other uncommon exceptions "embarked property" and "property got by violation of international law". The UN Convention provides properties has allocated or earmarked for the satisfaction of the claim which is the object of that proceeding are not immunity from attachment and execution. As for the state have realized the obligation it should afford, the embarked property is ought to be executed. And it's controversial and not usual provided of "property got by violation of international law".Chapter ? chiefly analyzes specific categories of property, which includes bank account of the central bank and diplomatic mission of the state, military property and property of scientific, cultural or historical interest. As the exception to the exceptions, specific categories of property are often granted absolute immunity from execution. Because of the importance of bank account of central bank, most countries grant special protection to it. And the bank account of diplomatic missions is often connected to the running of the embassy or the mission, it also protected specially. The burden of proof, however, is controversial as it is in favor of the state. It will more beneficial for the creditor if the court can split the burden of proof. And the military property and property of scientific, cultural or historical interest are concerned for their importance.Chapter V discusses relevant legislations and practices in China. At present, China does not make a systematic legislation of state immunity, and in practice we insist the doctrine of absolute immunity, which may not be the best way to hold. Based on the above analysis and the present situation in China, this dissertation finally puts forward the legislative proposal on immunity from execution of state property. On one hand, we can internally turn to restrict immunity and make a foreign state immunity law, which including the principle, the waiver, the exceptions, the Specific categories of property and the decision organs of immunity from execution. On the other hand, we can externally make full use of their immunity law when government is suited in foreign state, and combine the legal ways with the politic ways in the proceedings.