论国家及其财产管辖豁免的理论与发展
发布时间：2018-07-17 08:52
【摘要】：国家豁免是现代国际法上最重要、最复杂,也是最现实的问题之一。当国家在外国被控诉时,它是否能成功地主张国家豁免而免于外国法院的管辖,关系到国家的重大利益,涉及国家主权平等这一根本性的国际法原则,对于法律实践、政府机关和私人企业都有很深远的意义与影响。随着各国对外贸易的日趋深化,它的重要现实意义将会更清晰地显示出来。 本文以国家豁免为研究对象,从国际法基本理论的角度出发,探讨了国家豁免的概念、依据、理论和实践,并对国家豁免范围领域内的典型问题一主体及例外进行了深入细致的论述,对我国管辖豁免的政策、实践和发展作了分析与展望。本文分为五个部分,第一部分是对国家豁免的概述,重点研究了国家豁免的概念和理论依据。第二部分着重研究了国家豁免范围的传统理论和实践。首先作者采取历史研究和比较研究并重的方法,分析并评述了绝对豁免论和限制豁免产生的原因、背景并对它们予以评述。其次作者介绍了主要西方国家关于国家豁免的实践,运用比较的方法探讨了主要西方国家关于国家豁免的实践,分析的重点是主要西方国家法院判决、外交声明和学者的意见。第三部分主要研究国家豁免的主体。国家是享有国家豁免的主体,但是在国家豁免的领域内,国家的概念有所延伸,国家范围的大小成为倍受关注的核心问题,因为国家的实际行为往往通过政府部门、元首、君主或外交代表等的行为表现出来,国家本身并不从事任何活动。所以,研究国家豁免的主体问题具有非常现实的意义。作者通过比较研究英美等国的国家豁免法和审判实践以及《联合国国家及其财产管辖豁免公约》的规定,重点研究哪些个人和组织可以代表国家或经由国家授权从事“公”行为从而可以主张管辖豁免。第四部分作者研究了国家豁免例外的几个典型问题。作者选择了商业交易和人身伤害和财产损害这两种国家豁免的主要例外作为重点研究对象。第五部分论述了我国在国家豁免问题上的实践、发展趋势和对策。我国应适用世界的发展趋势,采用限制豁免论,尽快制定我国的《国家豁免法》。 最后在结论部分总结了本文的主要内容。国家豁免问题仍然处在不断发展的过程中,在这一问题上,中国应当解决好原则性和灵活性的关系,即既要坚持国家豁免这一国际法原则,推动关于国家豁免的普遍性国际公约的发展,又要在实际的国际民商事活动中采取灵活多样的措施来协调这个问题上同其它国家及其自然人或法人的利害冲突,从而做到既能在国际民商事交往中保护我国的主权利益,又能促进我国对外民商事关系顺利发展。
[Abstract]:State immunity is one of the most important, most complex and most realistic issues in modern international law. When a state is accused in a foreign country, whether it can successfully host a state exemption from the jurisdiction of a foreign court is related to the great interests of the state, the fundamental principle of international law involving the national sovereignty and equality, the practice of law, and the government. Both organs and private enterprises have far-reaching significance and influence. With the deepening of foreign trade, their important practical significance will be displayed more clearly.
This paper, taking the state immunity as the research object, discusses the concept, basis, theory and practice of state immunity from the perspective of the basic theories of international law, and makes an in-depth and detailed exposition of the typical subjects and exceptions in the domain of the scope of state immunity, and analyzes and prospects the policy, practice and development of China's jurisdictional immunity. The article is divided into five parts. The first part is an overview of state immunity, focusing on the concept and theoretical basis of state immunity. The second part focuses on the study of the traditional theory and practice of the scope of state immunity. First, the author adopts the method of historical research and comparative study to analyze and comment on the absolute immunity theory and restriction exemptions. Secondly, the author introduces the practice of state immunity in the main western countries and discusses the practice of state immunity in the main western countries by means of comparative methods. The emphasis of the analysis is on the court judgments, diplomatic statements and the opinions of scholars in the main western countries. The third part mainly studies the national immunity. The state is the subject of the exemption. But in the field of state immunity, the concept of the state has been extended, and the size of the state has become the core issue of concern, because the actual behavior of the state is often expressed through the acts of the government, the head of state, the monarch, or the diplomatic representative, and the state itself is not engaged in the task. Therefore, it is of great practical significance to study the subject of state immunity. By comparing the state immunity law and trial practice of the United States and the United Nations and the provisions of the Convention on immunity of the United Nations and its property jurisdiction, the author focuses on which individuals and organizations can represent the state or engage in "public" by state authorization. In the fourth part, the author studies several typical problems of the exception of state immunity. The author chooses the main exceptions of the two national exemptions as commercial transactions and personal injury and property damage. The fifth part discusses the practice, development trend and the trend of China's exemption from the state. China should apply the development trend of the world, adopt the theory of restrictive immunity, and formulate our national immunity law as soon as possible.
Finally, the main content of this article is summed up in the concluding part. The issue of state immunity is still in the process of continuous development. On this issue, China should solve the relationship of principle and flexibility, that is, we should adhere to the principle of international law and promote the development of universal international convention on state immunity, and it should also be true. In international civil and commercial activities, flexible and diverse measures are adopted to coordinate the conflicts with other countries and their natural or legal persons on this issue, so as to protect the sovereignty interests of our country in the international civil and commercial exchanges, and to promote the cis - profit development of our country's civil and commercial relations.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D99
本文编号：2129883
[Abstract]:State immunity is one of the most important, most complex and most realistic issues in modern international law. When a state is accused in a foreign country, whether it can successfully host a state exemption from the jurisdiction of a foreign court is related to the great interests of the state, the fundamental principle of international law involving the national sovereignty and equality, the practice of law, and the government. Both organs and private enterprises have far-reaching significance and influence. With the deepening of foreign trade, their important practical significance will be displayed more clearly.
This paper, taking the state immunity as the research object, discusses the concept, basis, theory and practice of state immunity from the perspective of the basic theories of international law, and makes an in-depth and detailed exposition of the typical subjects and exceptions in the domain of the scope of state immunity, and analyzes and prospects the policy, practice and development of China's jurisdictional immunity. The article is divided into five parts. The first part is an overview of state immunity, focusing on the concept and theoretical basis of state immunity. The second part focuses on the study of the traditional theory and practice of the scope of state immunity. First, the author adopts the method of historical research and comparative study to analyze and comment on the absolute immunity theory and restriction exemptions. Secondly, the author introduces the practice of state immunity in the main western countries and discusses the practice of state immunity in the main western countries by means of comparative methods. The emphasis of the analysis is on the court judgments, diplomatic statements and the opinions of scholars in the main western countries. The third part mainly studies the national immunity. The state is the subject of the exemption. But in the field of state immunity, the concept of the state has been extended, and the size of the state has become the core issue of concern, because the actual behavior of the state is often expressed through the acts of the government, the head of state, the monarch, or the diplomatic representative, and the state itself is not engaged in the task. Therefore, it is of great practical significance to study the subject of state immunity. By comparing the state immunity law and trial practice of the United States and the United Nations and the provisions of the Convention on immunity of the United Nations and its property jurisdiction, the author focuses on which individuals and organizations can represent the state or engage in "public" by state authorization. In the fourth part, the author studies several typical problems of the exception of state immunity. The author chooses the main exceptions of the two national exemptions as commercial transactions and personal injury and property damage. The fifth part discusses the practice, development trend and the trend of China's exemption from the state. China should apply the development trend of the world, adopt the theory of restrictive immunity, and formulate our national immunity law as soon as possible.
Finally, the main content of this article is summed up in the concluding part. The issue of state immunity is still in the process of continuous development. On this issue, China should solve the relationship of principle and flexibility, that is, we should adhere to the principle of international law and promote the development of universal international convention on state immunity, and it should also be true. In international civil and commercial activities, flexible and diverse measures are adopted to coordinate the conflicts with other countries and their natural or legal persons on this issue, so as to protect the sovereignty interests of our country in the international civil and commercial exchanges, and to promote the cis - profit development of our country's civil and commercial relations.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D99
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