From The Walters Case, Scan Chinese Government And Enterprises’ Conflict Of Sovereign Immunity In The Litigation In America

Sovereign immunity is an important international principle which based on and closely related to the principle of national sovereignty. It includes three contents, jurisdiction immunity, immunity from judicial proceedings, and immunity from execution. Sovereign immunity conflict is always an important issue during the international intercourse. Since the reform and opening, it has been controversial on the scope of Sovereign immunity frequently between our country and other countries, especially between China and USA. The contradiction of these problems focuses on jurisdiction immunity and immunity from execution, especially for the former, the government’s behavior is whether the commercial activity or not, whether in the United States or has a direct influence on the United States come to become the key to judge the case.In 2005, Foreign minister Li Zhaoxing formally signed the United Nations Convention on jurisdictional immunities of State and their property. This illustrates our country has changed the attitude of “absolute immunity theory”, and also illustrates that the restrictive immunity doctrine is now becoming a more and more powerful global trends. As a result, the mainstream view more or less consider that China should change the attitude of absolute immunity, or, on the basis of persisting in the absolute immunity, we can adopt restrictive immunity in some special field.The author through literature retrieval and the study finds that the domestic to the problem of sovereign immunity theory research in the past two years does not see more, and the case the referee did not updated in time, the content of the paper is not comprehensive, and the development practice at the risk of derailment. This means that the article for reference the latest related literature is not much. Based on the district court’s rule of 2011 Walters case,we can see a new development abroad. This paper hopes through the review, analysis of successful cases in recent years to replenish the empirical analysis part, combining the theory and practice, for our country sovereign immunity problem provides a global perspective.Due to the unqualified rifle made in China killed their son, Mr. and Mrs. Walters filed suit in 2009 in the U.S. District Court for the execution of default judgment against the People’s Republic of China. Based on the case, this article briefly expounds the development of the theory of sovereign immunity, and compares the relevant provisions of Foreign Sovereign Immunities Act and the Convention above, then analyses the case from different angles. In addition to the introduction and conclusion, this article is divided into three chapters.The first chapter is to describe the specific detail of the Walters case and analyze a few issues of the case in detail, such as whether the banks have the position to put forward the execution immunity, whether business torts or judgment by default means waiving the immunity, whether the plaintiff is entitled to collect property of the foreign country’s agents and branches, etc. And then the author discuss sovereign immunity dispute behind the case about Chinese government and enterprises in American court. In the meantime, the author presents own opinion on attachment immunity and execution immunity and jurisdictional immunity in practice, to make matting for finding how to solve the main problems encountered in China about sovereign immunity.After analyzing the Walters case in detail, we need comb the legal principles and provisions behind the case, and clarify the concrete practice of the two countries in sovereign immunity. The second chapter is about the basic theory of immunities of States and legislation and judicial practice in the international community and China. It is divided into three section. The first section summarizes the connotative meaning of sovereign immunity from the perspective of academic, introduces absolute immunity and relative immunity doctrine and recent development. The second section and the third one focus on the law practice and the present situation of legislation of sovereign immunity in the international community and China.The third chapter the author combines other typical cases in recent years, is to investigate and analyze the common problems about conflict of sovereign immunity. According to the case and the international practices, the author puts forward there strategies. One, identify the correct meaning of the convention, make full use of bilateral or multilateral treaties on the international law level. Second, the government protests actively and state-owned enterprises plead in court and take advantage of diplomatic and legal measures flexibly. Three, improve the domestic theoretical and practical, including perfecting the reform of state-owned system, when and only when conditions are possessed, making China’s domestic sovereign immunity act.Indeed, nearly two years, it is very rare that the government and enterprises are sued in the foreign court for sovereign immunity question. But the separation of government and enterprises in our country is still in the gradual implementation, some state-owned enterprises in China will be sued certainly, so the research on this issue is not outdated. On the basis of this the author writes this article.