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The head of the Legislative Affairs Committee of the Standing Committee of the National People’s Congress answered reporters’ questions on the Foreign State Immunity Law

On the morning of September 1, the Fifth Session of the Standing Committee of the Fourteenth National People’s Congress voted to pass the “Law of the People’s Republic of China on Foreign State Immunity”. A reporter from Xinhua News Agency interviewed the person in charge of the Legislative Affairs Committee of the Standing Committee of the National People’s Congress on the basic meaning of the foreign state immunity system and the significance, characteristics, and main content of the formulation of this law.

Q: Please introduce what is the foreign country immunity system.

Answer: The Foreign State Immunity Act is an important law concerning a country’s foreign relations and judicial system. The foreign state immunity system refers to the special institutional arrangement that the courts determined based on certain principles do not have jurisdiction over civil cases involving foreign countries and their properties, or under specific circumstances. Under normal circumstances, territorial jurisdiction is the basic principle for a country’s courts to exercise jurisdiction; at the same time, it is supplemented by some other necessary jurisdiction principles. Before the 1950s, for civil cases involving foreign countries and their properties, countries generally adopted the principle of absolute immunity based on the concept of sovereign equality of countries and “no jurisdiction among equals”, that is, regardless of foreign countries’ activities or conduct No matter what the nature of the law is, the courts of a country will not have jurisdiction. After the 1950s, as countries increasingly participated in international economic activities as civil and commercial subjects, in order to protect the interests of their own citizens and legal persons, some countries gradually turned to the principle of restriction and immunity. The so-called principle of limited immunity is to distinguish foreign state acts into “sovereign acts” and “non-sovereign acts” according to the nature of state acts, and to distinguish foreign state property into “sovereign property” and “commercial property” accordingly. Jurisdictional immunity is granted to sovereign acts and sovereign properties of foreign countries, and jurisdictional immunity is no longer granted to non-sovereign acts and state commercial properties.

At present, many countries in the world implement the principle and system of limited immunity by means of concluding international treaties and formulating domestic laws, and some countries have established the principle of limited immunity through judicial practice. The 1972 European Convention on State Immunity and the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property both clearly stipulate the limited immunity system.

Question: Why did my country formulate the Foreign State Immunity Law, and what is the significance of this law?

Answer: Since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping at its core has insisted on comprehensively governing the country according to the law, and has made a series of major decisions and deployments to coordinate the advancement of domestic and foreign-related rule of law, strengthen legislation in foreign-related fields, and improve the foreign-related legal system. major work. In recent years, the National People’s Congress and its Standing Committee have thoroughly implemented the spirit of General Secretary Xi Jinping’s important instructions and the decision-making and deployment of the Party Central Committee, accelerated the pace of legislation in the field of foreign affairs, and successively formulated and revised a number of important foreign-related laws and foreign-related provisions in laws. The Foreign State Immunity Law passed at the Fifth Session of the Standing Committee of the Fourteenth National People’s Congress is an important achievement of my country’s strengthening of legislation in foreign-related fields.

Formulate the Foreign State Immunity Law, adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, thoroughly implement Xi Jinping Thought on Diplomacy and Xi Jinping Thought on the Rule of Law, adapt to the new situation and changes in my country’s ever-expanding foreign exchanges, and establish my country’s foreign state immunity system. Necessary adjustments have been made to my country’s national immunity policy, and it is clarified that my country’s foreign state immunity policy has shifted from absolute immunity to limited immunity. First, it is conducive to safeguarding the legitimate rights and interests of Chinese citizens and legal persons, and facilitating high-level opening up; second, it is conducive to implementing the principle of national sovereignty and equality, safeguarding my country’s sovereignty, security, and development interests; third, it is conducive to filling the gaps in the legal system and accelerating the improvement of my country’s foreign-related The legal system; Fourth, it is conducive to giving play to the function of judicial trials in the foreign-related field and improving the effectiveness of foreign-related justice.

Q: Please introduce the legislative process and main content of the Foreign State Immunity Law.

A: According to the relevant legislative work plan of the Standing Committee of the National People’s Congress, the Ministry of Foreign Affairs, together with relevant departments, drafted a draft law on immunity of foreign countries, which was submitted by the State Council to the Standing Committee of the National People’s Congress for deliberation. In December 2022, the 38th meeting of the Standing Committee of the 13th National People’s Congress conducted the first review of the draft foreign state immunity law. Afterwards, in accordance with the legislative procedures, the Legislative Affairs Committee of the Standing Committee of the National People’s Congress issued the draft to relevant departments of the central government, some provinces (autonomous regions, municipalities), institutions of higher learning, and legal research institutions for comments; the full text of the draft was published on the NPC website for public consultation. Opinion. The Constitution and Law Committee of the National People’s Congress, the Foreign Affairs Committee, and the Legislative Affairs Committee of the Standing Committee successively held symposiums and demonstration meetings to listen to the opinions of relevant central departments, experts and scholars, and conduct research. All parties generally support the formulation of the Foreign State Immunity Law, and believe that the draft adheres to the guidance of Xi Jinping Thought on Diplomacy and Xi Jinping Thought on the Rule of Law, adapts to the new situation and changes in the continuous expansion of China’s foreign exchanges, establishes China’s foreign state immunity system, and timely implements China’s state immunity policy. Make adjustments and make clear regulations on judicial procedures such as the jurisdiction of Chinese courts over foreign countries and their property civil cases. It is of great significance to protect the legitimate rights and interests of our citizens and legal persons, safeguard national sovereignty, security, and development interests; the draft is generally mature and feasible, and it is recommended to make further revisions and improvements before it is released as soon as possible.

Since the Standing Committee of the 14th National People’s Congress performed its duties in accordance with the law, it has attached great importance to foreign-related legislation. The 2023 legislative work plan of the Standing Committee of the National People’s Congress includes the Foreign State Immunity Law as a legal item to continue to be considered. On June 28, 2023, the Third Session of the Standing Committee of the Fourteenth National People’s Congress voted and passed the “Foreign Relations Law of the People’s Republic of China”, which stipulates: “The People’s Republic of China shall, in accordance with relevant laws and the Foreign countries and their property are exempt.” On July 26, 2023, the Constitution and Law Committee of the National People’s Congress held a meeting to conduct a unified review of the draft based on deliberation opinions and opinions from various parties, and revised and improved the draft. The fifth meeting of the Standing Committee of the 14th National People’s Congress reviewed the second draft of the draft law on foreign state immunity and made further revisions and improvements; on September 1, the meeting passed the “Law of the People’s Republic of China on Foreign State Immunity”; President Xi Jinping signed a presidential decree announcing the law, which will come into force on January 1, 2024.

The Foreign State Immunity Law is based on my country’s national conditions and actual needs, with reference to relevant international treaties and international practices, to clarify the principles and rules of my country’s foreign state immunity, and to determine exceptions to immunity and related procedures. There are 23 articles in this law, which mainly stipulate the following contents:

One is to establish the general principle of state immunity. Article 3 of the Law on Immunity of Foreign States stipulates that foreign countries and their properties enjoy immunity from jurisdiction in the courts of the People’s Republic of China, except as otherwise provided in this Law. That is to say, Chinese courts do not exercise jurisdiction over foreign countries and their properties in principle, but Chinese courts may exercise jurisdiction if the circumstances specified in this law are met. At the same time, according to Articles 13 and 14, property of foreign countries enjoys immunity from judicial compulsory measures in Chinese courts; except for the circumstances prescribed by law, Chinese courts shall not take judicial compulsory measures against foreign state property.

The second is to determine the circumstances under which Chinese courts can exercise jurisdiction over foreign countries and their properties. Articles 4 to 12 of the Foreign State Immunity Law clearly stipulate the scope of the courts of the People’s Republic of China to exercise jurisdiction over foreign countries and their properties, including foreign countries expressly accepting jurisdiction over specific matters or cases, and conducting commercial activities. lawsuits, lawsuits arising from the performance of labor or service contracts, compensation lawsuits caused by torts, and arbitration-related matters; at the same time, Article 14 clearly stipulates the circumstances under which Chinese courts may take relevant judicial coercive measures. Generally speaking, the provisions of the Foreign State Immunity Law on the circumstances under which Chinese courts can exercise jurisdiction over foreign countries and their properties are relatively strict and specific, and are generally consistent with relevant international treaties and common international practices.

The third is to provide for special procedures applicable to foreign state immunity cases. Taking into account the particularity of foreign countries as parties to civil cases, Articles 17 and 18 of the Foreign State Immunity Law make special provisions on procedures such as service of documents and default judgments in foreign state immunity cases. Regarding the trial and enforcement procedures of civil cases involving foreign countries and their properties, if there is no provision in the Foreign State Immunity Law, the provisions of the Civil Procedure Law of the People’s Republic of China and other relevant laws shall apply.

The fourth is to clarify the important role of the Ministry of Foreign Affairs in foreign state immunity cases. Article 19 of the Foreign State Immunity Law stipulates that Chinese courts should accept the certification documents issued by the Ministry of Foreign Affairs of the People’s Republic of China on whether the relevant country in the case constitutes a foreign sovereign state, the delivery of diplomatic notes, and other factual issues related to state behavior; The law also stipulates that the Ministry of Foreign Affairs may issue opinions to the court on other issues involving foreign affairs and other major national interests. These regulations are conducive to guaranteeing and giving full play to the important role of the country’s diplomatic authorities in the trial of cases involving foreign countries.

The fifth is to clarify the relationship between the foreign state immunity system and other related privilege and immunity systems. Article 20 of the Foreign State Immunity Law stipulates that the provisions of this Law shall not affect the privileges and immunities enjoyed by foreign diplomatic missions, consular agencies, special missions, relevant delegations and relevant personnel, nor shall it affect the foreign heads of state, heads of government, The privileges and immunities enjoyed by the Minister of Foreign Affairs and other officials with equivalent status in accordance with the laws of our country, international treaties concluded or acceded to by our country, and international customs. This article clearly lists “international custom” as one of the legal basis for the privileges and immunities of relevant personnel, which is the first time that “international custom” is stipulated in my country’s legal system.

Q: What are the main features of the Foreign State Immunity Act?

A: The Foreign State Immunity Law is a special foreign-related law. Its principles and rules are not only based on the domestic rule of law, but also involve international law and diplomatic practice. From the point of view of the legal system, it mainly has the following characteristics:

First, the Foreign State Immunity Act is a law that implements the provisions of the Constitution and embodies the basic principles of international law. Sovereign equality of states is an important content of the Five Principles of Peaceful Coexistence stipulated in the Constitution of our country, and it is also a basic principle of international law. Adhering to the principle of sovereign equality of states is an important basis for establishing my country’s foreign state immunity system. For example, in Article 1 of the legislative purpose, it is clear that “protect the legitimate rights and interests of the parties, maintain the sovereignty and equality of the state, and promote friendly exchanges with foreign countries”, and in Articles 3 and 13, the general principle of state immunity is stipulated, and the legislation clearly maintains the sovereignty and equality of the state. In the relevant clauses, specific exceptions to state immunity are specified in accordance with international practices, which are conducive to equal protection of the legitimate rights and interests of the parties. my country’s foreign state immunity system is based on the principle of maintaining national sovereignty and equality, which is fundamentally different from the arbitrary expansion of jurisdiction by individual countries and the so-called “long-arm jurisdiction”.

Second, the Foreign State Immunity Act is a law that stipulates that our courts have jurisdiction over litigation procedures involving foreign countries and their properties. The Foreign State Immunity Law mainly stipulates the judicial jurisdiction of civil cases involving foreign countries and their properties, and at the same time makes special provisions on court procedures such as service of documents and default judgments. Judging from the main content of this law, it not only involves the issue of whether Chinese courts can manage foreign countries and their properties, but also how to manage civil proceedings involving foreign countries and their properties. Special provisions have been made on the issue, which provides principles to follow and rule guidance for Chinese courts to properly handle relevant civil cases.

Third, the Foreign State Immunity Act is a law that has both judicial and diplomatic attributes. Foreign state immunity is not only a matter of jurisdiction, but also involves a country’s foreign affairs and foreign policy, which may have some important impact on inter-state relations. Whether to grant immunity to foreign countries and their properties and what kind of immunity to grant is a judicial issue, and it is also an important content of a country’s foreign policy. On the basis of adhering to the general principle of foreign state immunity, the Foreign State Immunity Law focuses on specifying the specific circumstances under which Chinese courts can have jurisdiction over civil cases in which foreign countries are defendants or involve foreign countries and their properties. In order to ensure that the country’s foreign policy is accurately grasped in relevant cases, Article 19 specifies the important role played by my country’s competent foreign affairs departments in the trial of cases involving foreign countries. These regulations are conducive to safeguarding national interests, and also embody and reflect the institutional characteristics of the foreign state immunity system with dual attributes of justice and diplomacy.

Q: How is the principle of reciprocity of state immunity stipulated in the Foreign State Immunity Act?

Answer: Article 21 of the Foreign State Immunity Law stipulates that if the immunity granted by foreign countries to the People’s Republic of China and its properties is lower than that stipulated in this Law, the People’s Republic of China shall implement the principle of reciprocity. The principle of reciprocity is an important principle in international law and international relations, that is, countries give each other equal or non-discriminatory treatment in a certain aspect, with the purpose of reflecting and realizing mutual respect, equality and mutual benefit between countries. The Law on Immunity of Foreign States enumerates the specific circumstances under which Chinese courts may have jurisdiction over civil cases involving foreign countries and their properties, which is in line with relevant international treaties and common international practices. However, if a foreign country deprives, restricts or reduces the immunity granted to our country, our country has the right to take necessary countermeasures and countermeasures in accordance with the principle of reciprocity, such as corresponding adjustments to civil cases involving the country and its properties. Jurisdiction, etc., in order to safeguard my country’s sovereignty, security, and development interests.

Q: How to understand the mutual relationship between the Foreign State Immunity Law and the Civil Procedure Law?

Answer: The Foreign State Immunity Law mainly solves the issue of jurisdiction over civil cases involving foreign countries and their properties. Provides a clearer basis for procedural law. The Civil Procedure Law is the basic law that regulates the civil procedure system, and is the “general law” in the field of civil procedure. The content of the Foreign State Immunity Law is specific, and it is a special provision for civil cases involving foreign countries as litigants, and it is a “special law” in the field of civil litigation. In terms of jurisprudence, if there are special law provisions, the special law provisions shall apply first; for matters not covered by the special law, the general law provisions shall apply. The content of the Foreign State Immunity Law is relatively single and specific. When the courts try civil cases involving foreign countries, many procedures and issues need to apply the provisions of the Civil Procedure Law. Therefore, Article 16 of the Law on Immunity of Foreign States stipulates that if there are no provisions in this Law regarding the trial and enforcement procedures of civil cases involving foreign countries and their properties, the provisions of the Civil Procedure Law of the People’s Republic of China and other relevant laws shall apply. At the fifth meeting of the Standing Committee of the Fourteenth National People’s Congress, while passing the Law on the Immunity of Foreign Countries, it also made important revisions to the fourth part of my country’s Civil Procedure Law, which added a stipulation: “Civil lawsuits involving foreign countries shall be governed by the People’s Republic of China. The legal provisions on foreign state immunity; if there is no relevant law, this law shall apply.”

Q: Are the principles and rules of foreign state immunity established by the Foreign State Immunity Law applicable to the two special administrative regions of Hong Kong and Macao?

A: According to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and the Basic Law of the Macao Special Administrative Region of the People’s Republic of China, the Central People’s Government is responsible for the management of foreign affairs related to the Hong Kong Special Administrative Region and the Macao Special Administrative Region. According to the interpretation of Article 13, Paragraph 1 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region by the Standing Committee of the National People’s Congress in August 2011, the rules or policies on state immunity belong to the foreign affairs category of the country’s foreign affairs, and the Hong Kong Special Administrative Region has the responsibility to apply Or implement the national immunity rules or policies decided by the Central People’s Government, and shall not deviate from the above rules or policies, nor adopt rules or policies different from the above rules or policies.

The Law on Foreign State Immunity passed at the Fifth Session of the Standing Committee of the Fourteenth National People’s Congress establishes my country’s foreign state immunity system, including principles, rules and related mechanisms, and embodies the rules and policies of state immunity decided to be adopted by the Central People’s Government. After the implementation of the Foreign State Immunity Law, according to the Hong Kong Basic Law, the Macau Basic Law and the relevant interpretations of the Standing Committee of the National People’s Congress, the Hong Kong Special Administrative Region and the Macao Special Administrative Region should follow the Central People’s Government to switch to the state immunity rules and policies embodied in the Foreign State Immunity Law.

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