国家豁免若干问题辨析

Analyses of Some Issues about the Immunities of States

关于国家及其财产管辖豁免的适用范围,"限制豁免论"正在逐步取得国际社会的广泛认可,2004年12月2日第59届联大通过的《联合国国家及其财产管辖豁免公约》也采纳了"限制豁免论",并规定国家在8种诉讼程序中不得援引管辖豁免。虽然我国也签署了该《公约》,但由于其关于上述有关8种不享有豁免的诉讼行为的规定多数比较原则,许多概念不够明确,有待进一步厘定。而如何解释和适用这些例外规定,还缺少统一的标准,并且公约还未生效,我国法院应按照本国实践尽快制定我国的《国家及其财产管辖豁免法》,其中,国家与国有企业的关系、国有商业行为的判断标准和我国国情利害攸关,本文结合我国的国情和现状以及公约对这两个问题进行粗浅地探讨。

As regards to the scope of application about the immunities of states and their property, ＂the doctrine of restricted immunity＂ has been normally global accepted gradually. The doctrine also has been adopted as the general principle of the convention on the ＂UN Convention on Jurisdictional Immunity of States and Their Property＂ which had been approbated on the 59rh general assembly of the United Nations on the 2nd December, 2004 and eight kinds of proceedings were excluded from enjoying immunities. Although China has formally signed the convention, it is urgent to enact the act of the immunities of states and their property because some of the definitions are ambiguous and need to be clarified. And there is no unified standard about the interpretation of the convention and the convention has not come into force. In this case, it is crucial for China to make ＂the Convention on Jurisdictional Immunity of States and Their Property＂ in accordance with the situation of China, which involves the relations between the stare and the state-owned enterprises ,and the criteria for determining the state commercial transaction and the situation of the country. This paper , centered on the above problems, makes a general discussion according to our country＇s situation and status quo.