Research On The Application Of Crown Immunity In Hong Kong

Crown immunity is an ancient principle derived from English law,which means that the crown is not bound by any statute and not be sued in domestic courts in which it is not named expressly or by necessary implication.As the first case which Hong Kong court apply crown immunity,the "Hua Tian Long" has made it clear that the Chinese government and its entities can enjoy crown immunity in Hong Kong,and has adopted the "control test" as the benchmark for determining whether the subject involved enjoy crown immunity.However,this case has not elaborate on the specific application of the"control text",and ended with the Hong Kong court's ruling that the defendant had waived its crown immunity,leave a lot of doubts,which led to the subsequent controversy over the application of crown immunity in Hong Kong when the case of"China Coal Group" occurred.The application of crown immunity is related to the foreign commercial activities of Chinese state-owned enterprises and public institution,and also related to the sovereign authority of the Chinese government.Based on the analysis of the "Hua Tian Long" and the "China Coal Group",and specific application of crown immunity in common law,this paper first clarifies that the "Chinese government" that enjoys crown immunity refers to the State Council and its constituent department or subordinate agencies,while other non-governmental entities should under the premise of being connected with the"Chinese government",according to the control degree of the acts involved to judge whether it can enjoy crown immunity.Secondly,according to the doctrines of "named expressly" "necessary implication" or "benefit and burden" in common law,this paper think that Hong Kong court's ruling that the rules for waiver of crown immunity same with the rules for waiver of state immunity is existing flaw.Finally,three suggestions are put forward for the problems existing in the application of crown immunity by Hong Kong court,first,the central government should enact relevant national laws and extend them legal effect to Hong Kong to strict the application of crown immunity;second,introduction of relevant or competent departments of the State Council to prove the control degree of the Chinese government over the subject involved;third,clearly stipulate the rules for waiver of crown immunity in legislation to make up the flaw of Hong Kong court give judgement in "Hua Tian Long" that defendant give up the crown immunity.This paper consists of five part,except preface and epilogue.The first part,it through explaining the meaning and historical of crown immunity,compares the difference between crown immunity and other immunities,intends to clarify the specific meaning,historical development and trend of crown immunity.The second part,it focuses on the application of crown immunity in Hong Kong,analyzes the legal basis of the Chinese government and its entities enjoy crown immunity in Hong Kong,summarizes the judgments in the "Hua Tian Long" and" China Coal Group",and summarizes the principle of the application of crown imnunity by Hong Kong courts.The third part,it analyzes the applicable subjects of crown immunity,explains the reasons for the emergence of identification methods of "crown" and its specific application,clarifies what is the "Chinese government" under the Chinese context and clarifies the requirements of non-governmental entities that enjoy crown immunity according to the "control text".The fourth part,it expounds the issue of waiver of crown immunity,analyzes the rules for waiver of crown immunity in common law,and criticizes the view that the waiver of crown immunity is same with the rules for waiver of state immunity in the"Hua Tian Long".The fifth part,it analyzes the influences of the Chinese government and its entities enjoying crown immunity in Hong Kong,combines with the relevant immunity legislation actuality,this paper suggest that the central government should legislate to restrict crown immunity,perfect the determination method of the control degree under the "control text" and clearly stipulate the rules for waiver of crown immunity in the legislation.