Study On Immunity From Execution Of The Central Bank's Property

Since the development of the theory of state immunity,the principle of restrictive immunity has become a trend.Western countries such as the United States,Britain,France and Germany have also accumulated a large number of judicial experience in state immunity.The jurisdictional restrictive immunity in practice necessarily leads to the issue of the immunity from execution.Since the immunity from execution involves deeper and more direct interests of the state,the state generally adopts a more cautious approach to it.The United Nations Convention on jurisdictional immunity of States and Their Property specifically provides for immunity form execution of specific categories of property.Among them,the property of the central bank is of great significance for maintaining the stability of the national financial order,and theoretically obtains the absolute immunity from execution,which constitutes an exception to the commercial property exception.As early as the 1970s and 1980s,the United States,the United Kingdom and Germany had already heard cases involving jurisdictional exemptions or exemptions from central banks.At that time,domestic scholars and judges of the courts had already discussed this issue,and some The State's Sovereign Immunity Act also makes special provisions for the Central Bank.Therefore,it is necessary to examine the legislation and practice of countries in the implementation of the central bank's property exemption.As far as the central bank's accounts are concerned,the basic purpose is to ensure the stability of the national financial order and the regulation of the macro economy.However,because of the difficult marginal problem of the mixed nature of funds in the account,it is impossible to determine its applicable purpose.Some scholars worry that the enforcement of the central bank's mixed account may affect or even hinder the performance of the central bank's functions,and the central bank's functions are generally considered to be sovereign functions,which may constitute a violation of state's sovereignty.Of course,this view is taken with a very cautious attitude and may even be more affected by administrative policies.However,some scholars believe that excessive tolerance of mixed accounts can lead to legal loopholes,making it almost impossible for central bank property to be executed,which is unreasonable.In the trial of the case,the determination of the scope of the central bank's property is crucial.The US Foreign State Immunity Act is relatively vague about this provision.Although Congress has explained this,there are still four different interpretations in theory,and in practice,judges will have different considerations and analysis for different cases.Therefore,there is still no clear opinion and practice on the identification of the scope of the central bank's account.However,the current judicial practice in the United States tends to determine the scope of property in accordance with the “central banking activities” model.In the implementation of the exemption procedure,first of all,the distribution of the burden of proof is very important in the trial process.The general principle of distribution of the burden of proof is “who advocates who gives evidence”,but in the process of implementing the property of the central bank,the private party proves that the scope and nature of the central bank's property is too difficult.In order to balance the interests of the private parties and the state,some countries transfer part of the burden of proof to the state,and require the central bank or the country to bear the burden of proof that the central bank account is used for sovereign activities,and what kind of statement or The evidence must be adopted.Obviously,this shift is beneficial to private creditors.Second,the US waiver of the exemption of central bank property stipulates a series of strict conditions,which are still essentially the protection of foreign central bank property,making it difficult for private parties to successfully execute foreign central bank property.Finally,China's only legislation on state immunity,the Foreign Central Bank Property Enforcement Immunity Act,is about immunity from execution of foreign central bank property.Although the content of the law is relatively simple,it clarifies China's attitude towards absolute immunity from the central bank's property.With the gradual development of the restriction exemption,it is worth considering whether the almost complete immunity is granted to maintain investor confidence.In facing multiple policy demands such as building an international financial center,safeguarding foreign exchange investment security and coping with the sovereign debt crisis,China can consider China's central bank in terms of jurisdictional exemption,central bank property definition,abandonment of immunity and reciprocity to satisfy the policy requirements such as the property exemption system.