The Transfer From Absolute Immunity To Limited Immunity

State immunity is an international principle with the theory of sovereign equality as its legal merit. It concerns the great interest of the state. As to legal practice, it has far-reaching significance and influence on the governmental departments and private businesses. With the increasing deepening of foreign trade of each state, its realistic significance will be revealed even more clearly.This paper discusses the scope of state immunity from the point of view of the basic theories of international law. It discusses the concept, the significance and the theoretical basis of state immunity. It also addresses how to determine the nature of act of state for jurisdictional immunity and exceptions of state immunity deeply and in great details. It analyses and prospects the theory, practice and existing problems concerning jurisdictional immunity in China, as well as the trend of its future development. It has been divided into five parts:In part one,it is about the introduction of state immunity。It mainly studies the concept, significance and theoretical basis of state immunity. In part two, it is about the theories and practices surrounding state immunity. Firstly, the author analyses the reasons, the background of absolute immunity theory and limited immunity theory,employing the method of historical study and comparative study, and also comments on them. Secondly, the author analyses the reasons of the evolution from the"absolute immunity theory"to the"limited immunity theory". Finally, the author introduces the practices of states concerning state immunity,takes the method of comparison to further discuss the practices of concerning state immunity of states,and the main points of analysis are the judicial decisions,diplomatic announcements and the opinions of the scholars around the world. Judging from the practices of states,we can see that more and more states adopt limited immunity theory. In part three, it is about the determination of the nature of act of state for jurisdictional immunity. Act of state should be carried out by qualified subject representing state. For example, the actual act of state tends to be expressed through the act of the governmental departments, the head of the state, the king and the diplomatic representatives, and the state itself does not engage in any act, and therefore, it is necessary to study the problem of subject in studying state immunity in detail. Then, the author studies in detail another two typical problems—the legal status of the state enterprises and the central banks. In part four, it is about several typical problems concerning the exception to state immunity, i.e. commercial transactions, tortuous acts and employment contracts. On commercial transactions, the author puts the emphasis on the definition,standard of judgment,determination of commercial transactions as well as the relationship between the conduct of commercial transactions and the country of the court. On the problem of states engaging in tortuous acts, the author mainly studies the determination of tortuous acts and the elements of exercising of jurisdiction over state tortuous acts. On employment contracts, the author lists the instances of state practices and the relevant provisions concerning"convention of immunity". In part five, it is about our country's position and proposals. China should adapt itself to the trend of development in the world , adopt the doctrine of restrictive immunity. And make our own immunity law as soon as possible.