《联合国国家及其财产管辖豁免公约》与国际民商新秩序的构建

United Nations Convention on Jurisdictional Immunities of States and Their Property and Construction of New International Civil and Commercial Order

国际民商新秩序的提出对于国际私法的发展具有重大意义。国际民商新秩序要求国际民商事关系中的当事人处于平等的法律地位,如果国家在国际民商事交往中享有豁免权,则不利于国际民商新秩序的构建。关于国家豁免的范围,存在着绝对豁免主义与相对豁免主义的分歧。绝对豁免与国际民商新秩序的构建背道而驰,相对豁免与国际民商新秩序的构建相契合。《联合国国家及其财产管辖豁免公约》第一次在全球性国际公约中规定了国家及其财产管辖豁免原则,标志着限制豁免说彻底战胜了绝对豁免说,是国际民商新秩序构建进程中的里程碑。

The proposition of New International Civil and Commercial Order has great significance in the development of Private International Law. New International Civil and Commercial Order require the parties of international civil and commercial relations have equal legal status. It goes against construction of New International Civil and Commercial Order that states are entitled to immunities in international civil and commercial communication. There are differences existed in the scope of state immunity, i.e. absolute immunity and restrictive immunity. Absolute immunity is acted counter to the construction of New International Civil and Commercial Order and restrictive immunity is suitable for construction of New International civil and Commercial Order. ＂United Nations Convention on Jurisdictional Immunities of States and Their Property＂ is a milestone in the process of construction of New International Civil and Commercial Order because it＇s the first worldwide international convention which prescribes the principle of jurisdictional immunities of states and their property and it marks that restrictive immunity theory defeat absolute immunity theory.