The principle of judicial immunity in international law

The development of international civil relations of products is not only an important contemporary international law, but also a complicated theoretical and practical problem. The jurisdictional immunity of the state and its property has aroused great concern of the state, involving not only public international law, private international law, international economic law, international law scholars and the international community.

State immunity principle? Is a principle of international law.

Confirmed national legislation, judicial practice and international treaties, and became an important principle of international law in the19th century. Under this principle, scholars have put forward different theories, such as extraterritorial international comity, mutual dialogue and national sovereignty. [1] However, the theory of sovereign equality of countries and the foreign inviolability of independent countries and their property immunity.

State immunity, also known as sovereign immunity of the state and its property from foreign laws, belongs to the jurisdiction of foreign courts. State immunity includes judicial immunity, administrative immunity and tax immunity. Judicial immunity includes jurisdictional immunity, litigation immunity and execution immunity. The basic meaning of state immunity is: 1. Agree that the court of a country should not accept any lawsuit of the defendant abroad if it is not a foreign country; A country has accepted the plaintiff's lawsuit in a foreign court. Can be directly accepted by foreign counterclaims; 3。 In the case that a country's court may not enforce it, foreign countries are right.

The principle of state immunity is an extension of state sovereignty, an important right and an important embodiment of state sovereignty. As a sovereign country, it is a recognized principle of international law to enjoy immunity in international exchanges. Only by adhering to this principle can we maintain and consolidate the principle of national sovereignty and ensure normal, equal and mutually beneficial exchanges between sovereign countries.

With the consent of the courts of other countries, the state should sue the state and its property for jurisdictional immunity.

The country with jurisdiction immunity and its property are not under jurisdiction, but the country or property that is the subject of litigation. It includes the content of exemption, exempting the state, the state-owned property rights that belong to physics for personal reasons and special legal status. [2] The state and its property are not subject to jurisdiction. Because of the subject of ownership, any sovereign state with this right and other sovereign jurisdictions of its property have special legal status and enjoy special treatment. In other words, foreign citizens, state organs and their property (and consular property) of a country are not allowed to take away any property, and should be subject to measures incompatible with the sovereign dignity of the country. State property, no matter in any other country, is specially protected. Should be combined.

Understanding the country that governs immunity and its property is related to the implementation of legal immunity and immunity. Otherwise, we can't fully grasp this concept. Immunity from jurisdiction, litigation and execution is not the only difference, but related to immunity. On the one hand, they have obvious differences and different meanings, and they are different at different stages of international civil litigation. Giving up immunity does not mean giving up the other two kinds of immunity. On the other hand, they are also closely related to the three principles of state sovereignty, and are isomorphic with the state immunity and its property principles as a whole, namely, immunity from jurisdiction, immunity from litigation and immunity from execution. A country only enjoys immunity from jurisdiction in other countries, of course, immunity from domestic legal process and immunity from execution. Similarly, only one country has waived its immunity from litigation and enforcement issues brought by the courts of another country.

As a principle of international law and its property, countries enjoy the principle of jurisdictional immunity, and national sovereignty is not an exception rule. [3] Any unilateral restriction is wrong. However, this does not mean that this principle does not allow reasonable exceptions. This anomaly mainly occurs in the following two situations. First of all, all countries agreed to give up his country. It is generally believed that the special needs and interests of a country are based on giving up jurisdiction to exclude streams and springs. Their method: 1. Clarify the relevant clauses, treaties and contracts that have been abandoned; 2。 Litigation started after the dispute, express or implied waiver. 1980, China acceded to the obligations undertaken in 1969 Convention on Civil Liability for Oil Pollution Damage, renounced its jurisdiction and enforced the judgments of state-owned businessmen. It should be pointed out that in the third part, immunity is waived by limiting immunity. These two fundamentally different issues should not be confused. The former is an act taken by a sovereign country and a manifestation of exercising sovereignty, while the latter is a violation of sovereignty by other countries, and the second is a retaliatory measure taken by one country against another. According to the principle of reciprocity, when a country goes to another country and its property right is exempted from jurisdiction, other countries have the right to take retaliatory measures to deny its jurisdiction immunity according to the invalidation and due respect of international law.

The jurisdictional immunity of the state and its property is a very important principle. In international law, this is a very complicated and controversial issue. There are serious differences in the country's political and economic interests and foreign policy, especially in the applicable restrictions of distribution, national theory and legislative and judicial practice. As early as the 20th century and the end of19th century, the jurisdictional immunity of the state and its property formed two main theoretical and practical types.

(A) the theory of absolute immunity

It is said that the theory of absolute immunity, also known as absolute immunity, absolute immunity principle or absolute immunity, as well as diplomatic immunity of foreign countries and their property, must represent the theory of absolute immunity of Oppenheimer, Hyde, Deserts Morris of Britain, Liszt of Germany, Evan Rupp, Nice Belgium and guslav Chomsky of the former Soviet Union, unless the nature of their acts, whether exempted or not. Oppenheimer, "The influence of national equality is that no country can exercise jurisdiction over another country. Therefore, although the state can sue in a foreign court, it generally cannot be sued by a foreign court unless it voluntarily submits it to the jurisdiction of the court. " [4] Hyde's absolute state immunity is very certain. He pointed out that "it is an accepted theory that a country, not any other country, can sue it without his consent." [5]

According to international practice, some countries adopting the theory of absolute immunity took the lead in recognizing the precedent of foreign immunity of countries and their property as early as16th century and in 1668. At the beginning of19th century, western countries gradually formed the systematic practice of immunity from mutual jurisdiction through their domestic legislation and judicial practice. [6] At that time, the United States and Britain were typical examples of realizing absolute immunity. 18 12, Marshall, the chief justice of the US Supreme Court, took "a completely equal and absolutely independent sovereign state" as the basis for defending sovereign immunity and refused the government to test French ships of other sovereign countries [in the next seven years]. The United States adopts absolute exemption, and foreign countries and their property are granted absolute exemption without exception until 65438+. Other countries, such as Britain, Germany, France, Belgium and many other countries, have the same judgment on the change of state immunity policy on this issue, and all countries unanimously recognize that their property enjoys jurisdictional immunity. Therefore, before the end of19th century and the beginning of 20th century, this theory was supported by almost all western countries and was widely used in judicial practice. At present, the absolute immunity of socialist countries and the vast number of third world countries has been realized.

(B) the theory of limited immunity

The theory of limited immunity is also called the theory of limited immunity, the principle of limited immunity, the theory of limited immunity or the theory of functional immunity. It is said that foreign countries and their property enjoy immunity, and it should be taken into account that they may advocate state behavior when exercising their functions. According to its nature or purpose, it can be divided into sovereign acts, rules of conduct and non-sovereign acts. Infringement of trading rights or private behavior can be divided into two categories. The first kind of behavior enjoys immunity in the rights or legal acts of other countries, while the second kind of behavior does not. /kloc-The theory of limited immunity was adopted in the late 20th century, and their representatives are Fuxile, Roland, Barr, Everett, Weiss, Spiri and fiore.

In international practice, the earliest absolute immunity theory abandoned Italy's limited immunity theory. The ruling of the Supreme Court of Naples established the principle in 1886 that it is impossible for foreign countries to claim immunity for issues within the scope of pure private law. [8] In 1887, the Italian Court of Appeal also advocated that the performance of foreign governments with jurisdiction should be regarded as civil law. [9] Since then, the judgments of courts in the Netherlands, Belgium, Egypt, Switzerland, Austria, Romania, France, Greece and other countries have all adopted the theory of limited immunity to deal with state immunity and its property, and announced on May 1952 and 19 that "the principle of pursuing sovereign immunity is limited and the future policy is the State Council's". 1976, the us congress passed the foreign sovereign immunity act, which restricted sovereign immunity. In the form of law, 1978, Britain promulgated the State Immunity Act. The United States, Canada, Australia, New Zealand, Singapore, South Africa, Pakistan and other countries have also formulated domestic laws in this regard. At present, the western industrial countries that follow the restricted immunity are divided into domestic legislative forms, and the international treaties on limited sovereign immunity set by their theoretical compilation are the unification of international treaties in this field: 1926 Convention on the Exemption of Certain Rules of State-owned Ships, Bustamante Code, 1928, 1933 Rome Convention and Chicago Convention on Civil Aviation.

Both theories are imperfect, even if there are serious defects or problems. Absolute immunity, limited immunity is unreliable. In particular, the theory of national sovereignty and its property immunity has played a great role in international law, promoting and maintaining the principle of normal international exchanges and establishing absolute immunity. However, the traditional theory of absolute immunity needs to overcome many shortcomings and deficiencies: first, the scientific term of this theory is absolute immunity. The state and its property enjoy "absolute" immunity in foreign countries, which is too absolute and international law does not allow reasonable exceptions; Secondly, for state-owned companies with absolute immunity, the subject of state immunity to enterprises is also biased. These theories of absolute immunity are unscientific and outdated. The theory of limited immunity is not only groundless in theory, but also extremely harmful in practice: first, it runs counter to the principle of national sovereignty, ignores foreign sovereignty and dignity, and is more likely to be protested and retaliated by foreign countries, thus affecting normal international relations and undermining international peace; Second, the theory of dividing sovereign and non-sovereign acts that restrict immunity is unscientific, and the division of standards has caused great confusion in practice.

Theory and practice of China and its property jurisdiction immunity

As a big socialist country, China has played an important role in international affairs, especially in the implementation of the reform and opening-up policy, the socialist market economic system and the theory and practice of jurisdictional immunity of the state and its property, which has attracted more attention and attention all over the world.

Theoretically speaking, during the Cultural Revolution, the international judicial precedents of the state and its property immunity did not receive enough attention and lacked extensive research. We have done a lot of research on the international judicial precedent of state and its property immunity, and published many articles and works. Since 1979, the value of the Shanghai-Guangzhou railway bond case is mainly reflected in the following three aspects: 1 the internal state of the court's jurisdiction over the state and its property exemption, which directly comes from the principle of the special legal status of the state: the sovereign state and its property exemption, the personal tax exemption enjoyed by the two countries because of their special legal status, and the property exemption of state-owned assets. It is divided into immunity from jurisdiction, immunity from legal proceedings and immunity from execution. A company has the status of a legal person, but an enterprise does not enjoy immunity. 3。 The abolition of exclusion or restriction of immunity has been unanimously criticized, but at the same time, almost all scholars' theories of absolute immunity have been abandoned by more and more countries in practice, especially when contemporary countries participate in international civil and commercial activities more and more frequently and it is no longer possible to develop international economic exchanges from a country's own interests. [ 1 1]

In practice, the government of China has always advocated the jurisdictional immunity of the state and its property, adhered to the principle of national sovereign immunity, opposed the practices of other countries that wantonly undermined the principle of national sovereign immunity, and advocated that all parties reach an international agreement to eliminate different positions on this issue. On the one hand, it claims and insists that China, as a sovereign country, naturally enjoys immunity and property for its actions. If you agree, there will be no foreign trial. In the case of 1949 aircraft and 1950 Liu Yonghao oil tanker, 1953 will? Sfago Bank Deposit Case 1957, People's Republic of China (PRC) Beckman Case, Fireworks Case 1979, 1979, 1989, as the case may be, our government has made a solemn stand. On the other hand, the courts in China will not accept the prosecution of foreign countries and governments. However, China has never declared its absolute sovereign immunity. On the premise of adhering to the principle of national sovereignty and national sovereign immunity, according to the needs of normal economic exchanges, the state waives the principle of immunity under special circumstances for specific cases or specific matters through agreement or other forms. In the report of the 39th session of the Sixth Committee of Huang Jiahua International Law Commission, our representative pointed out that "in the past, as we have said many times, there has never been so-called absolute state immunity, because a country can voluntarily accept the jurisdiction of a foreign court, explicitly or implicitly, or because both parties agree to adopt alternative dispute settlement and judicial settlement, which is unnecessary" [12]. At the same time, China claims that the scope of state immunity is the behavior of state-owned and state-owned property. We strictly distinguish between state-owned and state-owned property acts and state-owned enterprises or private enterprises with independent legal personality whose acts and property are not conducive to the latter countries, which enjoy judicial immunity abroad and do not need it.

In other legislative practice and treaty practice, the same performance, we demand the diplomatic practice of jurisdictional immunity of the state and its property. At present, there is no special exemption for the state and its property in specific legislation, but the legal principles provided, such as No.239 of the Civil Procedure Law of People's Republic of China (PRC), No.4 of the Regulations on Diplomatic Privileges and Immunities of People's Republic of China (PRC) and No.4 of the Regulations on Diplomatic Privileges and Immunities of People's Republic of China (PRC), have already reflected China's basic position and proposition to some extent. Treaty "and adhere to the principle of state immunity? It is recognized that a country can voluntarily waive its immunity, and it is desirable to have such immunity on the basis of the consent of the country. This immunity will be based on treaties, such as the Sino-Soviet commercial and maritime treaty and its annexes in 1958. In addition, we have signed or acceded to international conventions, such as Vienna Convention on Diplomatic Relations 196 1, Vienna Convention on Consular Relations 1979 to 1963, 1980 and 65438+.

Perfection of the theory of jurisdictional immunity of state and its property in the new international order

The old pattern at the turn of the century and what kind of new international order should be established in the future world are related to the fate of the future world and mankind, but they have aroused great concern. People all over the world are eager to establish a just and reasonable new international order. Based on historical experience and reality, we advocate the establishment of a peaceful, stable, just and reasonable new international order on the basis of the Five Principles of Peace. This new order, including the new political order and economic order, is a closely related and complementary whole. As the core of the new international order, all countries, big or small, strong or weak, rich or poor, are independent and belong to the international community. The basic contents of the new international order include: the right to choose its own social, political and economic system and road independently according to its own national conditions, and any country? A country, especially a developing country, must never interfere in other countries' internal affairs, let alone respect each other's sovereignty and territorial integrity for its own values, ideology and development model. Any country will be invaded or annexed by other countries under any pretext. International disputes should be settled reasonably through peaceful negotiations. Oppose the use or threat of use of force and the use of war to resolve international disputes, and international relations may not be under great pressure. It's pathetic to bully the small and the rich. In international affairs, one or several major countries in the world should participate in consultation on an equal footing to solve the unrealizable monopoly. No country should seek to promote power politics, change the old international economic relations and replace them with a new international economic order featuring fairness, reasonableness, equality and mutual benefit and equal exchange.

The establishment of a new international economic order is inseparable from the formation of appropriate legal principles, rules and universal application. Perfecting the theory of jurisdictional immunity of the state and its property will certainly promote the establishment of a new international economic order. In practice, the absolute exemption of this theory has been abandoned by more and more countries, especially when modern countries participate in international civil and commercial activities more frequently, and they do not adopt the way of exchanging their own interests from a country's international economy. In addition, in practice, a new party and country restrict the principle of immunity, and they think that the jurisdiction of an act or property should not be exempted, while other countries themselves ignore the actual principle, insist on absolute immunity, and give up the jurisdiction of the corresponding act or property of the other country, which is obviously almost self-defeating [13]. The theory of limiting immunity and the theory of deleting immunity are consistent with criticism. Therefore, the view of absolute immunity advocated by international law scholars has been replaced by the following wording: it is a basic principle of international law that a country and its property enjoy judicial immunity in international civil proceedings. Only by adhering to this principle can we ensure normal, equal, mutually beneficial and sovereign exchanges. However, this does not mean that if we adhere to this principle in civil activities, we can voluntarily give up through treaties, agreements or contracts, gain different views and practice compromise and reconciliation between the two factions [14], or advocate the principle of abandoning the country and decide whether to grant specific overseas countries immunity on the basis of reciprocity in the case of treaties or other agreements [15].

International legal scholars have noticed that the theory of jurisdictional immunity of the state and its property is becoming more and more perfect to meet the needs of the new international economic order. As for how to improve, but due to the lack of in-depth research, there has been no feasible solution. The author tries to talk about some superficial views on the perfection of the theory of jurisdictional immunity of the state and its property.

The absolute immunity theory that must be completely overcome and the limited immunity theory that must be completely denied have opened up a new way for the international community to solve the national jurisdiction immunity that needs to be in line with the new international economic order and the fundamental interests of the world and can be generally accepted.

2。 Adhere to the principle from the practice of all countries in the world, whether it is the absolute immunity of socialist countries and third world countries, or the national sovereignty immunity and property jurisdiction immunity imposed by western developed countries. It is a principle of international law that sovereign States enjoy immunity, not an exception. To improve the theory of jurisdictional immunity of the state and its property, you must adhere to the principle of sovereign immunity of the state, which is the fundamental position and starting point, and we will solve this problem.

3。 International Convention on State Immunity. Practice has proved that the negotiation between * * * and * * is an effective way for the modern international community to reach understanding, eliminate differences and solve disputes and problems. The principles that the world should adhere to, on the basis of national sovereign immunity, mutual respect on the basis of equality, the spirit of consultation, seeking truth from facts, seeking common ground while reserving differences, and full consultation in a pragmatic manner are acceptable, so as to formulate an international convention on state immunity, so as to coordinate the exemptions of countries and their property represented by the world and make them converge. States parties to international conventions agree to voluntarily conclude or participate, which reflects the will of all parties and clarifies the stability, standardization and binding force of rights and obligations of all parties. It is not only conducive to the operation of the national jurisdiction immunity system between the parties and their property issues, but also helps to prevent and avoid such disputes. Therefore, the international treaty on the immunity of the state and its property, as a worldwide legal norm to adjust the relationship with the state immunity, must clearly stipulate the objectives of the convention, the basic principles, rights and obligations of the state, the exemption and procedures of state sovereignty, the methods and procedures for dispute settlement, and the liability for breach of contract.

note:

[1] [2] Qin Huang: Research on National Immune Response, China University Press of Political Science and Law, 1987 4? 5,2。

[3] [14] Ni Re: "On the Theory and Practice of State Immunity", in 1983 Yearbook of International Law, 6,29.

[4] [1 1] Private International Law University Press, edited by Li, 199 1 year, 459463? 464。

[5] Hyde: International Law (1947), Volume 1, 8 13? 8 14。

[6-Fu Xue's Concept: A Course in International Law, Police Education Press, 199 1 year, p. 196.

[7] Huntsman: International Law Cases and Materials, 1980 Edition, 49 1 to 493 Pages.

[8] Qin Huang: "Theory of Immunity in Limit State", China Yearbook of International Law,1986,279.

[9] Han Zheng: Private International Law, Wuhan University Press, 1983, 134.

[10] the State Council communiqué,1952,26984.

[12] China yearbook of international law,1985,643.

[13] Li zerui: a forward-looking review of state immunity "upload" China yearbook International Law, 1986250? 25 1。

[15] Li Private International Law (Conflicting Documents), Wuhan University Press, 1987, pp. 3 13 to 3 15.

Qianjianghai-1996