A Discussion About Determination Of Commercial Activity In State Immunity

The theory and practice of state immunity are an important topic in contemporary international law.The controversy on this issue mainly focuses on that the state should adhere to the principle in the course of exemption,whether or not the state is free from the jurisdiction of the local courts in other countries,and the scope of the exception.With the development of the international economic order,the dual structure of the traditional civil society and the state has been broken.With more and more sovereign countries participate in the market economy with their personal identities,it results that the state immunity shows a tendency of relativity.After World War ?,western countries represented by the United States and Britain began to change their concepts one after another,They believed that a state could submit to the jurisdiction of a courts of another country under certain exceptional circumstances,and the exception of commercial activity become a consensus in international law.Although our country still advocates upholding the theory of absolute immunity,it has been loosened in the relevant legislation and practice.Looking at its affairs and analyzing of China's specific national conditions comprehensively from a development perspective,and the theory of restriction of exemptions are the result of the general trend.This article consists of five parts.Specifically,the first part explores the legal basis for the exception of commercial activity in state immunity.First of all,this chapter briefly introduces the definition and theory of state immunity,elaborates the definition and theoretical basis of state immunity;then explains the current changes in various countries and the status quo of the state immunity principle,and analyzes the formation and changes and development of the state immunity principle;Finally,this article leads to the focus of discussion-business practices,and discusses the legal basis for exceptions to the commercial activity.The second part and the third part analyze how to identify the commercial activity from two aspects of "subject" and "activity" respectively.As the core issue of the commercial exception system,the judgment standards of commercial activity is directly related to whether a country has the right of immunity.The fourth part elaborates the legal application of the judgment standards of state commercial activity,and makes comparative analysis from the provisions of relevant international conventions and relevant domestic legislation.The fifth part discusses the impact of the introduction of state immunity rules into China on commercial activity.Earlier,the current international situation has been expounded.On the basis of analyzing our country's existing practice and relevant laws,this part points out the necessity of restricting the exemption theory in our country under the current situation and the concrete proposal of putting forward our country's legislation on state immunity.