| How to judge the status of state-owned enterprises in the state immunity system is a complicated problem,there is no unified understanding in the academic circles and the legislation in any country.In China,state-owned enterprises play an important role in the policy of foreign investment,so that stateowned enterprises are often involved in lawsuit abroad.Whether the lawsuit cases of state-owned enterprises can be handled properly,will directly affect the significant interests of China and the protection of state-owned enterprises.The objects of this paper are the state immunity system and state-owned enterprises.This paper mainly discusses the status of state-owned enterprises in state immunity system,including the differences between state-owned enterprises and the general subjects of state exemptions: states and institutions of states,how to locate the position of state-owned enterprises in certain state immunity system,and the practice,development,analysis and prospects of state immunity in Chinese state-owned enterprises.This paper is consisted of four chapters.The introduction mainly talks about the complexity and importance of the status of state owned enterprises in state immunity system.Starting from the definition of state immunity,in the first chapter,this paper describes two kinds of standpoint of state immunity: absolute immunity and restrictive immunity.Subsequently,the subjects of state immunity are grouped into three categories: the central and local governments and the government agencies,the constituent units of the federal state or the national political division units,and individual or unit exercising the sovereign power as an agent of state.The second chapter focuses on the relationship between state-owned enterprises and states.Starting from the definition and classification of state-owned enterprises,this paper describes the different management of state-owned enterprises between China and foreign countries,which highlights the specificity of Chinese state-owned enterprises.Then the relationship between state-owned enterprises and state immunity from general subjects——states and institutions of state has been discussed.On this issue,there is an argument between structuralism and functionalism.Legislation in the United States and the United Kingdom,and provisions of The United Nations Convention on Jurisdictional Immunities of States and Their Property are different,which brings difficulties to judge whether state-owned enterprises can claim state immunity in litigation.The third chapter studies the status of state-owned enterprises in the specific state immunity system.In the framework of the theory of restricted immunity,the status of state-owned enterprises in the state immunity system are analyzed one by one in each specific litigation.First of all,under the jurisdiction of civil procedure,state-owned enterprises can only claim state immunity when accepting commission from state,and there are different standards for defining sovereign and business practices.Secondly,when finding out the status of state-owned enterprises in the immunity of enforcement after the verdict,sovereign acts and business acts should be distinguished.Thirdly,about the jurisdiction of criminal proceedings,the legislation of countries and international treaties about state immunity have avoided this problem,and need to find other international treaties and customary international law to determine it.The fourth chapter mainly analyzes the standpoint of China about state immunity and disadvantages of that standpoint and how to find the way out.Firstly,there is no certain provision to regular state immunity in any Chinese law.Secondly,China has always held an absolute immunity theory when Chinese state-owned enterprises involved in lawsuits abroad,which brings a lot of disadvantage to the national interests.Finally,this paper puts forward some suggestions to solve the problems.The conclusion reiterates the importance of state immunity and the urgency of solving the problems. |
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