1、從仰融案看跨國訴訟中的國家豁免問題Look at the issue of state immunity in transnational actions from the angrong caseJanssonLiaoning University Law SchoolAbstract it, Mrs. angrong angrong and Hongkong Huabo Finance Company Limited v. Liaoning provincial government illegal occupation of property rights case, caused gr

2、eat concern in the Chinese law circle, it involves many legal issues, such as issues of jurisdiction, capital contribution of the state-owned enterprises, the legal status of the problem, the cognizance of business transactions. Among them, the standard and the application of the sovereign immunity

3、has become the focus of attention.Key words angrong case; transnational litigation; China; America; state sovereign immunityState, Immunity, Problem, in, Transnational, Actions, from, the, Case, of, AngrongIn August 2003, the United States District Court for the District of Columbia, is Yang Rong, a

4、ngrong lady and Hongkong Huabo Finance Company Limited v. Liaoning provincial government illegal occupation of property rights case, through diplomatic channels to the government of Liaoning province Chinese served a summons, and the trial. The verdict, the losing party angrong. 1 angrong, the plain

5、tiff refuses to accept the decision of the court of appeal area. The court of appeals, in accordance with the provisions of the 1605th (a) (2), "commercial act" exception of the Foreign Sovereign Immunities Act of the United States, considers the actions of the Liaoning provincial governme

6、nt as a complete act of sovereignty. Therefore, the court of appeal confirms and maintains the district court's decision to dismiss the suit. 2 the whole incident caused great concern in the Chinese law circle, it involves many legal issues, such as issues of jurisdiction, capital contribution o

7、f the state-owned enterprises, the legal status of commercial transactions identified problems, among them, the standard and application of state sovereign immunity has become the focus of attention.A case of angrongIn 1991, a wholly owned subsidiary of angrong FLABEG finance company (hereinafter re

8、ferred to as established in Hongkong, China Bo) with the municipal government of Shenyang Jinbei Automobile Holdings Limited (hereinafter referred to as gold) established a joint venture in Shenyang Jinbei passenger car manufacturing Co. Ltd. (hereinafter referred to as the Shenyang car), the establ

9、ishment of the joint venture with Shenyang automotive, Jinbei 60% China has 25% stake, Bo, another partner of Hainan Huayin International Trust and Investment Corporation (Hainan) owns 15% stake in Hua Bo following the acquisition of Hainan shares, the equity structure of the car of Shenyang to 60 /

10、 40, namely gold holdings 60%, China holding 40% stroke.In order to expand the size of the business by entering the US capital market, partners are preparing to market the Shenyang car on the New York stock exchange. Angrong as Shenyang's chief executive and manager, was incorporated in Bermuda

11、Bermuda Holdings Limited (Hua Chen China) as Shenyang automobile listed on the New York stock exchange financing tool, and will transfer its 40% stake to Hua Chen Chinese. The gold cup also transfers its 11% stake in Shenyang automobile to Brilliance China, so far, Brilliance China owns 51% of the i

12、nterests of Shenyang automobile. As the transfer of 11% equity returns, gold achieved a 21.5% stake in China brilliance, brilliance shares in China angrong that reduced to the remaining 78.43%.In the United States Securities and Exchange Commission (SEC) registered shares, the IPO preparatory proces

13、s in the United States and the New York stock exchange, China's Government notified angrong, major shareholders of listed companies is a Chinese entity instead of Hongkong private enterprises, large shareholders if angrong understanding of the listed company by a Chinese NGO can meet the require

14、ments of the government as Chinese. In May 1992, China's Financial Education Development Foundation (hereinafter referred to as the foundation) was established by the Chinese people's Bank of China, the people's Bank of China and several other Chinese government agencies. Vice chairman o

15、f angrong.In September 1992, Hua Bo transferred its stake in Brilliance China to the foundation. Finally, angrong and chairman of the foundation Shang Ming agreed that "the foundation will trust for broadsino shares, in fact as FLABEG nominee, angrong, discretionary management control and domin

16、ate the fund in equity China brilliance. The shares of the transferred Brilliance China are held in the name of the foundation. Under this arrangement, together with October 2002, Brilliance China sold 28.75% stake.Foundation owns Brilliance China's 55.88% stake, the gold cup has 15.37% stake. A

17、ccording to the instructions of the angrong, broadsino paid brilliance China stock registration and listing fees, and will pay the management fee for the fund. He is also responsible for the brilliance of China's major shareholder, Shenyang automotive work, arranged for TOYOTA and general motors

18、 to produce cars. All the manufacturing facilities of Shenyang automobile are in Liaoning province.At the same time, in early 2002, the provincial government set up a working group headed by the assistant governor". In March 2002, the working group announced that all shares in the name of the f

19、oundation, including China angrong in the brilliance of interests, are state-owned assets, asked him to these shares transferred to the provincial government. After Rong refused, the working group and the board of directors Chinese notice angrong brilliance, the foundation no longer recognized broad

20、sino Chinese the beneficial interest in brilliance. According to the instructions of the provincial government, the board of directors of the lifting of the brilliance China angrong president, chief executive officer and director of the office, the working group members in these positions and other

21、management positions. In October 2002, the newly formed brilliance China board of directors no longer pay angrong wages, the next month to lift its manager, terminate the labor contract. The provincial government has also established Brilliance Automotive Group Holdings Limited (new brilliance) and

22、appointed provincial government officials as managers of the new company. About two months later, the company acquired a stake in Brilliance China hosted by the fund for 18 million of the market price of $6%. New brilliance and brilliance China board and the remaining China brilliance shares, includ

23、ing the shares traded on the New York stock exchange for the tender offer, in December 18, 2002 to 19 Chinese brilliance stock suspended in New York stock exchange.As the working group for the acquisition, on behalf of angrong Hua Bo to seek relief in the courts. 3 filed a lawsuit against the founda

24、tion in the Beijing high court for confirmation of its property rights under the name of the foundation, including shares held by the foundation's Brilliance China, but was refused. Angrong still in the United States District Court for the District of Columbia sued the government of Liaoning Pro

25、vince, the Liaoning provincial government "charges imposed the plaintiff's shares and other equity and other assets, and for their own commercial interests to control these property". The government of Liaoning province to the jurisdiction of the court dismissed the grounds of lack of

26、standard for Yang prosecution claim whether commercial law exemption exception behavior ("American Law" twenty-eighth volume 1605th (a) (2), or paragraph) expropriation exception (ibid. 1605th (a) (3) paragraph), are not applicable. The United States District Court agreed with the views of

27、 the Liaoning provincial government that the Liaoning provincial government levied a stake in Brilliance China as a sovereign act, and that the Liaoning provincial government should enjoy immunity. The district court dismissed the indictment in accordance with the federal civil procedure rules. Angr

28、ong subsequently appealed to the District Court refused to apply the business exception question.The appeals court of the United States Special Administrative Region of the Columbia has re examined the district court's decision to withdraw a claim based on sovereign immunity in accordance with t

29、he foreign sovereign immunity act. The Immunity Act is the only basis for the jurisdiction of the United States courts in foreign countries". Foreign states are exempt from prosecution in the United States unless their questionable acts are part of one of several exceptions to the bill. 4 "

30、;if the defendant questioned just full jurisdiction over the claims of the plaintiff in the law, then the district court shall be true to facts as the plaintiff claims, and decide whether or not these facts can be any exemption in exceptional cases attributable to the plaintiff cited the." If a

31、 foreign country claims that even if the plaintiff's claim is true and still not sufficient to be attributed to commercial conduct, that is equivalent to the question of the adequacy of the claim in law". Ditto, "if the claim is based on a sovereign act", "jurisdiction does n

32、ot exist", the district court may dismiss the suit accordingly. 5In this case, the Liaoning provincial government "advocates angrong imposed shares of the plaintiff and other equity interests and other property of the scheme,For their own commercial interests and control the property belon

33、ging to the United States Code "twenty-eighth" volume 1605th (a) (2) the amount of three cases of "business practices", which is occurred in the territory of the United States, and the relevant foreign countries outside business activities elsewhere in the United States, and made

34、 a direct impact the behavior of". There is no dispute about the case happening outside the United states. The controversial question is: (1) whether the actions of the provincial government are related to a commercial act in China; (2) if so, does the act have a direct impact on the United Sta

35、tes?".In this case the parties of angrong lawsuit based on the Liaoning province government behavior have different opinions. Angrong focuses on all provincial government behavior - including Shenyang City, Shenyang automobile joint venture project, initially involved in the working group on ne

36、w brilliance, Brilliance will be China shares from the fund will transfer to the new brilliance and Xinhua morning offer publicly traded shares of the remaining Chinese brilliance - said the behavior is the behavior of the participants to set up private market. On the other hand, the provincial gove

37、rnment will focus on the property of the angrong claims "by the Liaoning provincial government. The error collection " the provincial government said the charges levied on angrong FLABEG China brilliance equity, and the collection is the typical behaviour of the government. According to th

38、e provincial government, the control of the fund and any behavior Chinese shares after the brilliance - including the transfer of shares to the new brilliance - only and final disposal has been levied on assets; the provincial government also pointed out that these acts can not be levied behavior in

39、itially converted into commercial behavior. Angrong countered that the working group has been established in order to pass the fund will take over the China province government insists that the brilliance, constitute the basis of the complaint behavior, is the only sovereign states can act. The appe

40、llate court endorsed the appellant's claim that the actions of the Chinese government in Liaoning are still sovereign acts and enjoy immunity. Accordingly, the appeal court upheld the district court's decision and dismissed the appeal.Two, the international legislation of state immunity and

41、American proposition"The key ways to solve the problem of legal angrong incident" is the correct understanding and application of the theory of state and its property. Jurisdictional Immunities of States and their property have been accepted by international law as general rules. In terms

42、of its development, there are two different doctrines and practices, namely, absolute immunity and relative immunity. Generally speaking, the socialist countries and some developing countries adhere to the doctrine of absolute immunity, and the developed countries in the West hold the view of limiti

43、ng immunity. Since the breakup of the Soviet Union and the upheaval in Eastern Europe, more and more countries have advocated limiting immunity. For example, the United States, France, Germany, Holland, Pakistan, Argentina, Egypt, and the European Convention on the exemption of countries in 1972 ado

44、pted the doctrine of restrictive immunity. 6 since 1998, the United Nations Commission on international law has been engaged in the codification of Jurisdictional Immunities of States and their property. Read the draft two Commission on 1991 through the "Jurisdictional Immunities of States and

45、their property" of the draft articles (hereinafter referred to as the two reading of the bill) also explicitly adopted the exemption limit, in addition to the provisions of the traditional country agreed to constitute exceptions of jurisdictional immunities, commercial transactions, employment

46、contracts, intellectual property and industrial property rights, state owned or the operation of ships are widely in the field of jurisdictional immunity exception. 7After the two reading of the draft was submitted to the United Nations General Assembly in 1991, delegations from various countries co

47、nsidered the specific provisions of the draft and tended to adopt the doctrine of restrictive immunity. The theory of restrictive immunity divides state behavior into sovereign and transactional behavior. It only recognizes immunity from state sovereignty and immunity from transactional behavior. In

48、 the nature of distinguishing state behavior, there are various standards in practice and theory in various countries. The most widely used international standards are the standard of nature and the standard of purpose. The quality standard is to distinguish between "sovereignty" and "

49、;transactional behavior" according to the nature of state behavior, if involved in the lawsuit behavior according to its nature, only the state or in the name of the country to engage in acts of sovereignty, that is;If the state is engaged in a private act, whatever the purpose, it is a sexual

50、act. According to the standard of nature, transactional behavior is easier to establish, and the immunity of the state is more restricted, so it is a strict restrictive immunity theory.The purpose of the standard is to consider the special status of the state in international economic activities, an

51、d to consider whether or not a country's conduct is a commercial act, the purpose of which is to consider whether the government has a public purpose. Since "purpose" can be interpreted as an unlimited extension, all state actions can eventually be attributed to the fulfillment of cert

52、ain public purposes, and the single application of the standards of purpose can essentially lead to a position of near absolute immunity. Developing countries are widely involved in economic activities as national identities. Adhering to standards of purpose can safeguard their immunity to the great

53、est extent, but it is not beneficial to persistently adhere to and expand standards of purpose. Therefore, the purpose of the standard is often used as a secondary standard quality standard and play a role, but in practice, on the basis of objective standard is subjective, often with subjective lack

54、 of objectivity; and the behavior of the country in a certain extent can generally be found on public purpose and enjoy state immunity against. Doctrine of limit state commercial behavior intention.In the United States on the basis of the state sovereignty and property problem in 1976 is "forei

55、gn sovereign immunity law", the law adopted a special pattern, provides foreign state immunity and American jurisdiction, will apply in the United States for foreign countries against the exemption rules and jurisdiction in uniform the same law, in accordance with the laws of the United States,

56、 the court in foreign countries has jurisdiction must meet two conditions: first, the foreign countries do not enjoy immunity from jurisdiction; second, the foreign countries are engaged in behavior with the United States there are plenty of relationship, that is to say, a country does not have juri

57、sdiction the exemption does not mean that the country of the court must have jurisdiction, the country must act constitute "commercial activities", but also to meet the "association between the United States and must The United States Court can exercise jurisdiction, of course."F

58、oreign Sovereign Immunities law" business exceptions under the jurisdiction of the courts of the United States can not be exempted from the following situations: the alleged behavior "is a commercial act, the foreign countries in the United States, or in the United States and the behavior

59、of the foreign countries in the relevant business elsewhere, or outside the United States and the foreign countries in business elsewhere, and this behavior has a direct impact on the u.s." When the 8 determines whether a "commercial act" is applicable, the court examines the nature o

60、f the exercise of power by foreign countries rather than its effects. 9 if the foreign country exercise "only those private citizens can exercise the rights" instead of the "unique sovereign rights", foreign countries engaged in the behavior of commercial behavior; 10 if the sovereign "not as a market manager, but as the market in a private act, namely the sovereign engaged in business activities. The problem is that the specific behavior of a foreign country (rega