论国有船舶的有限管辖豁免

On the restrictive jurisdictional immunity with respect to state-owned ships

国有船舶管辖豁免经历了从绝对豁免到限制豁免的发展历程。20世纪初以来,国际社会开始通过国内立法、司法判例、国际条约等实践将用于商业目的的国有船舶排除在管辖豁免的范围之外。但在对国有船舶豁免范围予以限制的同时,应当注意明晰以下三个问题:用于商业目的的国有船舶应当依据船舶的用途来界定;国有企业对于所经营的国有船舶不得主张管辖豁免;国有企业具有独立的法人资格,一国法院不得任意扣押与当事船舶无关的其他国有企业的船舶。

The jurisdictional immunity of state-owned ships has evolved from absolute immunity to restrictive immunity. Since the beginning of the 20th century, the international community gradually denied the immunity of state-owned ships used for commercial purposes through state practice such as domestic legislations, domestic judicial decisions and international treaties. Meanwhile, as the scope of immunity with respect to state-owned ships is limited to state-owned ships used for non-commercial purposes, it is necessary to make clear the following three questions： state-owned ship used for commercial purposes shall be defined according to its usage~ state enterprises have no right to invoke jurisdictional immunity relating to the operation of state-owned ships ; since state enterprises have independent legal personalities, it is not allowed to arrest any irrelevant ships operated by other state enterprises other than the particular ship in respect of which the claim arose.