The Legislative Status Quo And Improvement Of State Immunity In China

State immunity has rich connotations and values,among which there is a significant difference between absolute immunity and limited immunity.All countries in the world have chosen immunity models adapted to their own countries according to different historical development periods and needs,and implemented them through legislation and judicial practice.With the development of The Times,China’s position on state immunity changed from the traditional absolute immunity to the limited absolute immunity,and then to the hesitant mode of immunity until the draft Law on State Immunity finally selected to restrict immunity.Faced with the complicated international environment,it is necessary for contemporary China to choose the immunity model suitable for the current national conditions,namely,limited immunity.Restricted immunity is not only the mainstream choice of countries’ immunity models in the world today,but also the embodiment of our country fulfilling our obligations loaded from signing the United Nations Convention on the Jurisdiction Immunities of State and Property.It is conducive to the maintenance of China’s national interests and individual interests,and is beneficial to our country to occupy the initiative in the face of state immunity and mutilate lawsuits,improving the flexibility of responding means.Avoid being controlled by others.The Law on State Immunity(draft)clarifies the general principle that foreign States and their property enjoy immunity from jurisdiction in our courts;A system of exceptions to jurisdictional immunity has been established;It provides that foreign state property enjoys immunity from judicial coercive measures and establishes an exception system.The draft is an important achievement in promoting the rule of law in China and involving foreign countries in a coordinated manner.As for the specific provisions of the United Nations Convention on Jurisdictional Immunities of States and their Property and the laws of State immunity of other extraterritorial States,there is still room for improvement in the provisions of the Draft on the principle of reciprocity,exceptions to the immunity of commercial activities and torts,the order and mode of service and the priority of application of international treaties.It is suggested that on the basis of adhering to the principle of reciprocity,the relevant authorities should limit or expand the scope of reciprocity of the different restrictions in the domestic immunity laws of other countries,so as to prepare for the response.Enumerate the specific circumstances of commercial activities and extend the extension appropriately,considering the identification of commercial activities based on the nature of behavior combined with the purpose of behavior;Limiting the scope of application of the general exception of tort,the "place of the occurrence of the act" and "place of the occurrence of the result" as the requirements of the territorial connection of the tort;In order to avoid unnecessary disputes in the subsequent judicial procedures,reservations and provisions should be made on the specific ways and procedures of service of legal documents.Carefully deal with the relationship between state immunity and international coercive law,the relevant contents of international coercive law can be included in the exception of jurisdictional immunity,and deal with the relationship of law application with domestic law in combination with the contents of international treaties;Other relevant provisions should be supplemented and follow-up measures should be implemented.