日本主权豁免法制的最新发展与启示

The Latest Development of Rules on Sovereign Immunity in Japan and Its Enlightenment

作为联合国《国家及其财产管辖豁免公约》的缔约国,日本通过国内立法完成了对公约的转化。出于限制豁免主义立场的考虑,日本在商业交易的判断标准、给予外国国家豁免的具体情形以及外国国家参加法院诉讼的法律效果等问题上对公约进行了较大修改;出于与国内法衔接的考虑,对国家与国家企业的关系采取了回避的态度;而在劳动者损害赔偿诉讼的管辖权等方面,虽然条文表述有异,但却符合公约的精神。日本国内立法的整体方向是扩大日本的司法管辖权,这一点既需要引起我们的警觉,也值得我们借鉴。

As one of the signatory nations to the United Nations Convention on Jurisdictional Immunities of States and Their Property, Japan has completed the conversion of the Convention into domestic law. Abiding by the limited immunity theory, Japan has made quite a few modifications to the Convention such as the criteria for commercial transactions judgment, specific forms of state immunities and the legal effects of foreign countries participating lawsuits. Considering the conversion into domestic laws, Japan approaches the relationship between state and state - owned enterprises in an evasive manner, but in terms of laborer damage compensation lawsuits, Japan＇s domestic laws are in line with the Convention despite different wording of provisions. On the whole, Japan＇s domestic legislation tends to expand her jurisdiction to which we should be alert and from which we should take reference.