The Scope Of State Immunity Research

State immunity is one of the most important, most complicated and also most realistic problems in modern international law. When a state is sued in a foreign country, whether it can successfully claim the state immunity to avoid the jurisdiction of the foreign court concerns the great interest of the state, and involves such fundamental international principle as equality of state sovereignty. 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 dissertation takes state immunity as the research object, proceeds from the point of view of the basic theories of international law, discusses the concept, the theoretical and practical basis, the theories and practices of state immunity, addresses the typical problems in the field of state immunity—the subjects and exceptions—deeply and in great details and analyses and prospects the theory, practice, the trend of its development and proposal concerning jurisdictional immunity in China. The dissertation is divided into 4 chapters.The Forward briefly states the importance of the problem of state jurisdictional immunity, and indicates the problems that the dissertation is going to work on.Chapter One mainly studies the concept, the theoretical and practical basis, the theories and practices of state immunity. This chapter studies the concept and connotation of state immunity through comparison with such relevant concept as diplomatic immunity; introduces four theoretical bases concerning state immunity: doctrine of exterritoriality, doctrine of dignity of state, doctrine of comity and doctrine of sovereignty equality of state, through historical review. Although the author is in favor of the view that independence and equality of state are the bases of state immunity, certain degree of understanding and approval of different views are also expressed. Then, the author studies the theories and practices surrounding state immunity. First, the author analyses the reasons, the background of doctrine of absolute immunity and doctrine of relative immunity, and also comments on them through employing the method of historical study and comparative study. Second, the author introduces the practices of states concerning state immunity, takes the method of comparison to further discuss the practices 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 the doctrine of relative immunity. Finally, the author introduces the practice of treaty and the codifying work of International Law Commission of United Nations concerning the convention on immunity of state and its property jurisdiction.Chapter Two mainly studies the subjects of state immunity. State is the subject of state immunity. However, within the field of state immunity, the concept of state has been extended. The size of scope of state becomes the core problem arousing great attention. Because 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, the problem of subject in studying state immunity possesses considerable realistic significance. The author still adopts the comparative study method, and mainly studies what kind of persons and organizations can claim jurisdictional immunity representing the state or through engaging in the "public" act empowered by the sate through comparative study of the laws of state immunity and adjudicative practices of Britain and the United States as well as the provisions of the UN Convention on Jurisdictional Immunity of State and its Property. Then, the author studies in detail another typical problem—the legal status of the state enterprises and the central banks.In Chapter Three, the author studies several typical problems concerning the exception to state immunity. The author selects several principal exceptions to state immunity as the main objects of study: commercial transactions, tortuous acts and employment contracts. On commercial transaction, the author puts the emphasis on the definition, standard of judgment, determination of commercial transaction 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, the elements of exercising of jurisdiction over state tortuous act and cases violating human rights. On employment contract, the author studies the instances of state practices and the relevant provisions concerning "convention of immunity".In Chapter Four, the author, first of all, discusses the practices of state immunity in China. The author analyses the future trend of development concerning state immunity in China, and reached the conclusion that China should also adapt itself to the trend of development in the world, and adopt the doctrine of restrictive immunity. Finally, several proposals are advanced.The Conclusion part sums up the main contents of the dissertation. The problem of state immunity is still in the process of continuous development. China should solve the relationship between the matter of principle and the matter of flexibility, that is, China should stick to the international law principle of state immunity and promote the development of universal international convention concerning state immunity, and at the same time China should also adopt flexible and diverse measures in actual international civil and commercial activities to harmonize the conflict of interest with other states as well as individuals and corporations, and subsequently China can not only protect the subjective interest of China in international civil and commercial transactions, but can also promote the smooth development of China's foreign civil and commercial relationship.