世界范围内国家及其财产管辖豁免中的国有企业问题

发布时间：2018-02-22 22:12

本文关键词： 国家及其财产管辖豁免国有企业主体责任关系改革　出处：《华东师范大学》2011年硕士论文　论文类型：学位论文

【摘要】：国有企业作为国家管辖豁免中的特殊问题,一直以来都受到世界各国学者的广泛探讨。首先因为这是一个理论难题,国家豁免作为一个公法权利,只能由公权力的主体才能享有,比如国家,而国有企业,一方面具有公法主体的性质,因为它往往由国家注资,由国家掌握股权,并且与本国政府有着密切的联系,是国家的企业；而另一方面,在现代公司理论中,公司又应当是一个独立的私法主体。那么这样一个兼具公法和私法双重性质的主体,能否享有公法上的国家豁免权?它与国家豁免权的相互关系如何?这是一个值得探讨的问题。其次,一国政府对于国有企业能否享有国家豁免权的态度,关系到跨国贸易的开展,并会影响到本国的国际经济地位。因此,从立法司法实践角度来探询各国对于“国有企业与国家豁免主体之间的相互关系”问题的做法,有重大的国际意义。与此同时,我国是一个国有经济占较大比重的发展中国家,长期以来因为国有企业的“政企不分、产权不明”而在国际贸易中广受诟病,甚至致使我国政府被外国主体滥诉,造成了很负面的国际影响。2004年《联合国国家及其财产管辖管辖公约》出台,为解决国家豁免问题提供了重要蓝本的同时,也对我国提出了重要的挑战,作为公约的签署国,我国有必要尽快对此问题的世界通行做法进行研究,对国内法进行修正,以与国际接轨。在以上两个大背景之下,本文从国家豁免问题中的国有企业为切入点,尝试对国有企业与国家豁免主体的相互关系进行深入分析。本文分别从两个方面入手：国有企业能否成为国家豁免的主体；国有企业与国家豁免主体之间的相互责任关系,仔细研究了世界主要国家的立法和司法实践,并结合国际公约和学理研究,在此基础上总结出了对此问题的国际主流观点,并将此观点用于对我国“国企改制”以及立法提出改进意见。本文认为,基于独立主体的身份,国有企业不能成为国家豁免的主体,不能享有国家豁免权,除非是在代表国家行使公共职能；另外,对于国有企业与国家之间的相互责任关系,对于国家行为所引起的后果,在国家因为豁免权而无需承担责任的时候,不应当由国有企业来为国家行为买单,这也是源于国有企业的独立主体地位,除非,这种做法将有违于公平原则,例如国有企业实质上是被国家的控制,这种情况下,可以通过“揭开公司面纱”的途径,来要求国有企业承担相应责任；对于国有企业行为所引起的后果,国家的豁免权不会受到影响,无需为国有企业负责,除非有违公平原则。与此同时,我国作为国有经济占较大比例的贸易大国,应当以国际主流的“独立主体”观点为指导,进一步深化国有企业的体制改革,以实现国有企业与政府的真正分离,这不仅有利于保护我国国有企业的合法权益,也有利于树立良好的国际形象。
[Abstract]:As a special problem in the immunity of state jurisdiction, state-owned enterprises have been extensively discussed by scholars all over the world. First of all, because this is a theoretical problem, state immunity is a public law right. It can only be enjoyed by the subject of public power, for example, the state, and the state-owned enterprise, on the one hand, has the nature of the subject of public law, because it is often funded by the state, is controlled by the state, and has close ties with its own government. On the other hand, in modern corporate theory, the company should be an independent subject of private law. How does it relate to State immunity? This is a question worth exploring. Secondly, the attitude of a government to the enjoyment of state immunity by state-owned enterprises is related to the development of transnational trade and will affect its international economic status. From the angle of legislative and judicial practice, it is of great international significance to probe into the practice of various countries on the issue of "the relationship between state-owned enterprises and the subject of state immunity". At the same time, China is a developing country with a large proportion of state-owned economy. For a long time, the state-owned enterprises have been widely criticized in international trade because of their "indistinction between government and enterprises, and their property rights are not clear." this has even caused our government to be oversued by foreign parties. The introduction of the United Nations Convention on jurisdiction of States and their property in 2004, which provides an important blueprint for the resolution of the question of State immunity, also poses an important challenge to our country as a signatory to the Convention, It is necessary for our country to study the world practice of this problem as soon as possible and amend the domestic law in order to meet the international standards. Under the above two big background, this article regards the state-owned enterprises in the question of state immunity as the starting point, This paper tries to analyze the relationship between the state-owned enterprises and the subject of state immunity. This paper starts with two aspects: whether the state-owned enterprises can become the subject of the state immunity, the relationship of mutual responsibility between the state-owned enterprises and the subject of the state immunity, and the relationship between the state-owned enterprises and the subject of state immunity. Having carefully studied the legislative and judicial practices of the major countries of the world, and combining the study of international conventions and theories, we have summed up the mainstream international views on this issue, This point of view is used to improve the reform of state-owned enterprises and the legislation of our country. This paper holds that, based on the status of independent subject, state-owned enterprises can not become the subject of state immunity, and can not enjoy state immunity. Except in the exercise of public functions on behalf of the State; moreover, in the case of mutual responsibility between State-owned enterprises and the consequences of acts of the State, when the State is not liable by reason of immunity, State enterprises should not pay for state behavior, which is also due to the independent subjective status of state-owned enterprises, unless this practice would be contrary to the principle of fairness, such as the fact that state-owned enterprises are essentially controlled by the state, in which case, Through the way of "lifting the veil of the company," the state-owned enterprises can be held responsible accordingly. The immunity of the state will not be affected as a result of the actions of the state-owned enterprises, and there is no need to be held accountable for the state-owned enterprises. Unless there is a violation of the principle of fairness, at the same time, as a large trading country with a large proportion of the state-owned economy, China should be guided by the international mainstream view of "independent subject" to further deepen the institutional reform of state-owned enterprises. In order to realize the real separation of the state-owned enterprises from the government, this is not only conducive to the protection of the legitimate rights and interests of the state-owned enterprises in China, but also conducive to the establishment of a good international image.
【学位授予单位】：华东师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D99

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