试述国家及其财产管辖豁免例外
发布时间：2018-10-12 09:04
【摘要】：国家及其财产管辖豁免是一项普遍接受的习惯国际法原则。依据这一原则,一国及其财产在另一国的法院享有管辖豁免。然而伴随着全球化进程的不断加快,国家从事的商事行为也日益增多。国家及其财产管辖豁免原则是否存在例外以及例外的范围问题引起了众多国际法学者和专家的积极关注。国家豁免不仅是国际法领域的重要理论问题,还是国际社会国家间往来过程中迫切需要解决的问题。 本文以传统国际法理论为线索,将国家行为的性质区分为统治权行为和管理权行为,进而重点讨论了国家及其财产管辖豁免例外的四种主要类型,分别为商业交易、雇用合同,侵权行为和仲裁协定。并具体而详实地对他们在《联合国国家及其财产管辖豁免公约》中的立法规定进行解读以及结合我国的实际给予了一些启示。在文末简要叙述了其他四种类型。以其对国家及其财产豁免例外进行全面的梳理,进而有助于学者对国家豁免领域的研究。除了引言和结语外,本文主要分为四章。 第一章阐述了国家及其财产管辖豁免问题的基本理论,即国家及其财产管辖豁免的定义、国家及其财产管辖豁免例外的定义和其性质、特征。 第二章对国家及其财产管辖豁免例外的理论进行主要说明,包括有绝对豁免和相对豁免的主要内容和理论依据,以及由绝对豁免转变为相对豁免的原因。 第三章介绍有关国家及其财产管辖豁免例外的两大国际公约,《欧洲国家豁免公约》和《联合国国家及其财产管辖豁免公约》除了内容的概括之外还对其做了简要的评价。 第四章重点论述国家及其财产管辖豁免的例外四种类型,分别为商业交易、侵权行为、仲裁协定和雇用合同。同时对国家及其财产管辖豁免的例外的其他四种类型国有船舶、财产的所有、占有和使用、知识产权和工业产权和参加公司或其他机构问题做了粗略介绍。
[Abstract]:Jurisdictional immunity of States and their property is a universally accepted principle of customary international law. According to this principle, a State and its property enjoy immunity from jurisdiction in the courts of another State. However, with the accelerating process of globalization, the number of commercial acts engaged in by the state is increasing day by day. The existence of exceptions to the principle of jurisdictional immunity of States and their property and the scope of exceptions have attracted the active attention of many scholars and experts in international law. State immunity is not only an important theoretical issue in the field of international law, but also an urgent problem to be solved in the process of international exchange between countries. Based on the traditional theory of international law, this paper divides the nature of the act of state into the act of sovereignty and the act of administration, and then discusses the four main types of exceptions to jurisdictional immunity of the state and its property, namely, commercial transaction, employment contract, etc. Tort and arbitration agreement In addition, the legislative provisions of the United Nations Convention on jurisdictional Immunities of States and their property are interpreted in detail and combined with the actual situation in our country to give some enlightenment. At the end of this paper, the other four types are briefly described. It is helpful for scholars to study the field of state immunity by combing the exceptions to the immunity of state and its property. In addition to the introduction and conclusion, this article is divided into four chapters. The first chapter expounds the basic theory of the jurisdictional immunity of the state and its property, namely the definition of the jurisdictional immunity of the state and its property, the definition and nature of the exception of the jurisdictional immunity of the state and its property. The second chapter mainly explains the theory of the exception of jurisdictional immunity of States and their property, including the main contents and theoretical basis of absolute immunity and relative immunity, and the reasons why absolute immunity has changed into relative immunity. The third chapter introduces the two international conventions concerning the exceptions to jurisdictional immunity of States and their property, the European Convention on State Immunities and the United Nations Convention on jurisdictional Immunities of States and their property. Chapter four focuses on the four types of exceptions to the jurisdictional immunity of the State and its property, namely, commercial transactions, tort, arbitration agreements and employment contracts. At the same time, the other four types of state-owned ships, ownership, possession and use of property, intellectual and industrial property rights and participation in companies or other institutions are briefly introduced.
【学位授予单位】：西北大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D99
本文编号：2265555
[Abstract]:Jurisdictional immunity of States and their property is a universally accepted principle of customary international law. According to this principle, a State and its property enjoy immunity from jurisdiction in the courts of another State. However, with the accelerating process of globalization, the number of commercial acts engaged in by the state is increasing day by day. The existence of exceptions to the principle of jurisdictional immunity of States and their property and the scope of exceptions have attracted the active attention of many scholars and experts in international law. State immunity is not only an important theoretical issue in the field of international law, but also an urgent problem to be solved in the process of international exchange between countries. Based on the traditional theory of international law, this paper divides the nature of the act of state into the act of sovereignty and the act of administration, and then discusses the four main types of exceptions to jurisdictional immunity of the state and its property, namely, commercial transaction, employment contract, etc. Tort and arbitration agreement In addition, the legislative provisions of the United Nations Convention on jurisdictional Immunities of States and their property are interpreted in detail and combined with the actual situation in our country to give some enlightenment. At the end of this paper, the other four types are briefly described. It is helpful for scholars to study the field of state immunity by combing the exceptions to the immunity of state and its property. In addition to the introduction and conclusion, this article is divided into four chapters. The first chapter expounds the basic theory of the jurisdictional immunity of the state and its property, namely the definition of the jurisdictional immunity of the state and its property, the definition and nature of the exception of the jurisdictional immunity of the state and its property. The second chapter mainly explains the theory of the exception of jurisdictional immunity of States and their property, including the main contents and theoretical basis of absolute immunity and relative immunity, and the reasons why absolute immunity has changed into relative immunity. The third chapter introduces the two international conventions concerning the exceptions to jurisdictional immunity of States and their property, the European Convention on State Immunities and the United Nations Convention on jurisdictional Immunities of States and their property. Chapter four focuses on the four types of exceptions to the jurisdictional immunity of the State and its property, namely, commercial transactions, tort, arbitration agreements and employment contracts. At the same time, the other four types of state-owned ships, ownership, possession and use of property, intellectual and industrial property rights and participation in companies or other institutions are briefly introduced.
【学位授予单位】：西北大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D99
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