Correlative Law Problems Study Concerning State Immunity

In the development process of the international society, the system of States Immunity has experienced a transformation from the routine to regulation, from unwritten law to statute law, from diverse to unanimous, from scattered to complete, from absoluteness to limitation, and from simplicity to complexity. It also has embodied the development trend of mankind civilization walking from autarchy to democracy, from hegemony to advancement. In 2004, the passing of 《 the U.N.Convention on Jurisdictional Immunities of States and Their Property》 is a milestone in the State Immunity system development history, and also brings about a deep influence on the state immunity problems in the international community.Based on the U.N.Convention, this essay makes some points on some theoretical problems of the States Immunity according to the condition of our country.This essay is divided into three sections: Brief Account of the Problems Concerning State Immunity, State Acts, and development trend of State Immunity and the choice of China.Chapter one mainly focuses on the reason for the formation of the State immunity, the basis on the international law, its development stage and the hot issues between absolute immunity and limited immunity.State immunity means that the acts and properties of a state are free from the limitation of the administration, legislation and jurisdiction by another state. State immunity is a habit that has been shaped in the international association. It is subjected to the diplomatic immunity and emperor personal immunity from jurisdiction, but the main cause is that it is a result coming from the development of international association.According to the Principle of Equality between State Sovereign Authority, the state sovereignty is the supreme power owned by a state and can not be intervened by any other states, but the exertion of a state sovereignty is restricted. The need of an international association is an objective factor that limits the exertion of a state sovereignty; national consensus is the subjective factor that limits the exertion of a statesovereignty. A state enjoys state immunity and also has a duty to implement state immunity to other states. All states are equal in terms of the state immunity. In the essence, state immunity is a compromise to solve the sovereignty conflict, is a concession that one state sovereignty territorial effect yields to another nation state sovereignty extraterritorial effect.State immunity system has gone through three stages in its development; they are embryotic period, development period of absolute immunity, and growth period of limited immunity. And in this process, the argument between absolute immunity and limited immunity has always existed. The theory of absolute immunity thinks that all the behaviors of a state belong to the sovereignty behaviors, as a result, all need to be exempted from rule by foreign court no matter what nature they are. But theory of limited immunity believes that state and its properties enjoy immunity generally, but under some conditions, they should be ruled over by foreign court. It means immunity is a principle and jurisdiction is an exception.Chapter Two introduces law bodies that enjoy state immunity, sovereign acts and commercial acts of a state, some special acts of a state. This part is the core of the whole essay.Which law bodies enjoy state immunity is the prerequisite in the implement of state immunity. Which organizations enjoy state immunity, while which entities only have the position of the private international law; which sovereign acts of a state enjoy the immunity, while which business acts can't enjoy the immunity, all these are the problems that will be resolved in this chapter.The sovereign acts of a state undoubtedly enjoy state immunity while business acts can't enjoy state immunity. That what kind of acts are business acts have been cited in the U.N.Convention. As for judgment standard of state acts, there are three kinds of opinions in practice — " behavior nature say", "behavior purpose say" and "mixed- up say". "Behavior nature say" is the theory of strict limited immunity. "Behavior purpose say" is the last measure that a state can take to enjoy state immunity. The U.N.Convention adopts "Mixed- up say".State forced requisition is considered as a sovereign act and can enjoy state immunity. State concession agreement is also a kind of economic sovereignty and enjoys state immunity. But international financing is a business act and can't enjoy state immunity.Chapter three centers on the international development trend of state immunity, our state choice concerning immunity and the countermeasure we should take.As to state immunity, limited immunity has become an international trend and has stridden towards an international statute law. With the development of political situation and economic relationship of the international society, the scope and cause of state immunity will become smaller and smaller.China consistently upholds that the principle of State immunity is a principle of international law and admits that there are some exceptions to this principle. Our state standing concerning state immunity is the same as the U.N.Convention's.Under the condition that our country has already signed the U.N. convention, in terms of the state immunity, we should adopt the following counter plan:1. Adopt the limited state immunity and make our own immunity law as soon as possible.2. Based on the investigation of the circumstance that our country participates in the international commercial activities, work out the immunity law with ?the U.N.Convention ? as the script.3. Cultivate a group of judges and lawyers who have the ability to deal with the international commercial lawsuits involving our state and foreign companies.4. Reform the current management pattern of the state-owned enterprises; ascertain the independent legal position of the state-owned enterprises.5. The state should avoid directly signing the business contract with foreign natural persons or legal persons.