从绝对豁免到限制豁免及我国的应对策略——对“刚果民主共和国及另五人诉FG HEMISPHERE ASSOCIATES LLC”一案的反思

From Absolute Immunity to Restrictive Immunity and China's Strategy——Contemplating on the case of DEMOCRATIC REPUBLIC OF THE CONGO AND OTHERS v.FG HEMISPHERE ASSOCIATES LLC

中国内地坚持国家绝对豁免,至今没有受理过以一国为被告的案件。香港特别行政区法院审理"刚果民主共和国及另五人诉FG HEMISPHERE ASSOCIATES LLC"一案引发了对我国在国家豁免制度立场的思考。国家及其财产豁免是一项久已确立的国际法原则,随着国际经济交往的日益密切,它从绝对豁免主义走向限制豁免主义,虽然我国在特定情况下采取了灵活处理的方式,但这还不足够,应从国家利益出发,长期来看应制定国家及其财产管辖豁免法,短期则应根据个案事先做好法律评估,事后积极应诉。

Chinese mainland has been advocating the absolute theory of immunity and has not had any case with a state as the defendant. The case DEMOCRATIC REPUBLIC OF THE CONGO AND OTHERS v. FG HEMISPHERE ASSOCIATES LLC taken to the HK SAR court has inspired the reconsideration of China＇s position on state immunity. Jurisdictional immunity of state and its property is a long-established international rule, which is now transforming from absolute immunity go restrictive immunity. China, although in come specific circumstances, has adopted flexible measures in this question, which is far from enough. So in the long run, China should legislate on state immunity, taking into account its national interest, while in the short term, legal assessment should be made in advance according to concrete cases and defend actively in cases if incurred.