| State immunity is an important regime in international law,and clarifying the subject scope of State immunity is the primary prerequisite for the application of State immunity.In December 2022,Article 2 of the Law of the People’s Republic of China on Foreign State Immunity(Draft),deliberated by the Standing Committee of the 13 th National People’s Congress,stipulates the specific scope of "foreign countries".The terms "sovereign State" and "organ or component part of a sovereign State" under subparagraphs(1)and(2)of article 2 are largely the same as the immunity legislation of States and the provisions of international conventions,and the determination of immunity eligibility is relatively simple and less controversial in practice.The points of dispute in the practice of States mainly arise from entities other than the above-mentioned two types of subjects,that is,"State entities".The national legislation of "State entities" is not the same as that expressed in international conventions,and there are differences in the determination of their status as State immunity.This difference shows the opposition between "absolute immunity theory" and "restricted immunity theory" in upper theories,and the opposition between "structuralism" and "functionalism" when it is refined."Structuralism" and "functionalism" have their own advantages and disadvantages,and neither alone can perfectly solve the problem of determining the exempt status of "state entities".While the United Nations Convention on Jurisdictional Immunities of States and Their Property has begun to merge the two,adopting an eclectic approach to the immune-status of "State entities" in the Convention,there are relatively few domestic legislation that has not entered into force and is subject to eclecticism.Through the analysis of the legislative and judicial practice of China and other countries,this paper argues that China should adopt a restrictive immunity stance and that the immunity rule of "state entities" is based on eclecticism.In practice,differences in national legislation also make it difficult to determine the immunity status of "State entities" in judicial practice.The typical US,UK and UN models take different positions and approaches to the immunity status of "State entities".Through the analysis of the three models and the judicial practices of other countries,it is found that they have their own advantages and disadvantages.The US model adopts a lenient position on the exemption status of "state entities",which not only has problems in the legislative structure,but also tends to make the parties to the litigation bear obviously unequal litigation liabilities and costs in judicial practice,and the practice of this model also shows that it is not conducive to China’s interests.Although the British model and the United Nations model take a strict position on the immunity status of "state entities",and highlight the analysis of the "sovereign power" attribute of state entities in practice,although these two models have certain problems in the legislative structure,they meet the essential requirements of state immunity and have reference significance for the construction of China’s "state entity" immunity status rules.In the judicial and legislative practice of other countries on the issue of the immunity status of "state entities",there is mainly the opposition between "structuralism" and "functionalism".Article 2.3 of China’s draft sets the same standard of "exercise of sovereign power" for "state entities" as the United Nations Convention on Jurisdictional Immunities of States and Their Property and the United Kingdom’s State Immunity Act,requiring the dual performance of "authorized exercise" and "actual exercise",indicating that it adopts a strict position.This article will discuss and analyze the relevant issues of "state entities" in international exchanges on the basis of studying international conventions in the field of State immunity,as well as the legislative and judicial practices of major countries. |
