The person in charge of the Legal Work Committee of the Standing Committee of the National People's Congress answered questions from reporters regarding the Foreign State Immunity Law

On the morning of September 1st, the 5th meeting of the Standing Committee of the 14th National People's Congress voted to pass the State Immunity Law of the People's Republic of China on Foreign Countries. A reporter from Xinhua News Agency interviewed the head of the Legal Work Committee of the Standing Committee of the National People's Congress on the basic meaning of the foreign state exemption system and the significance, characteristics, and main content of formulating this law.

Q: Could you please introduce what is the foreign state immunity system.

Answer: The Foreign State Immunity Law is an important law related to the foreign relations and judicial system of a country. The foreign state immunity system refers to a specialized institutional arrangement based on certain principles for civil cases involving foreign countries and their property, where the court does not have jurisdiction or provides jurisdiction in specific circumstances. In general, territorial jurisdiction is the fundamental principle for a country's courts to exercise jurisdiction; At the same time, supplemented by other necessary jurisdictional principles. Before the 1950s, for civil cases involving foreign countries and their property, countries generally adopted the principle of absolute immunity based on the concept of national sovereignty equality and "no jurisdiction between equal parties", which means that regardless of the nature of the activities or behaviors of foreign countries, a country's court shall not have jurisdiction. After the 1950s, as more and more countries participated in international economic activities as civil and commercial entities, in order to protect the interests of their own citizens and legal persons, some countries gradually shifted towards implementing the principle of restriction and exemption. The so-called principle of restricted immunity is to distinguish foreign state behavior into "sovereign behavior" and "non sovereign behavior" based on the nature of state behavior, and correspondingly distinguish foreign state property into "sovereign property" and "commercial property". Based on this, it is clear that jurisdictional immunity is granted to foreign state sovereign behavior and sovereign property, and jurisdictional immunity is no longer granted to non sovereign behavior and state commercial property.

At present, many countries around the world have implemented the principle and system of restrictive immunity through the conclusion of international treaties, the formulation of domestic laws, and other means. Some countries have also established the principle of restrictive immunity through judicial practice. The 1972 European Convention on State Immunities and the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property both clearly provide for a system of restrictive exemptions.

Q: Why does China need to enact the Foreign State Immunity Law, and what is the significance of this law?

The Foreign State Immunity Law passed at the Fifth Session of the Standing Committee of the 14th National People's Congress is an important achievement in strengthening legislation in the field of foreign affairs in China.

Firstly, it is conducive to safeguarding the legitimate rights and interests of Chinese citizens and legal persons, and assisting in high-level opening up to the outside world; Secondly, it is conducive to implementing the principle of national sovereignty equality and safeguarding China's sovereignty, security, and development interests; Thirdly, it is conducive to filling the gaps in the legal system and accelerating the improvement of China's foreign-related legal system; Fourthly, it is conducive to leveraging the functional role of judicial trials in foreign-related fields and improving the efficiency of foreign-related justice.

Q: Please introduce the legislative process and main content of the immunity law of foreign countries.

Answer: According to the legislative work plan of the Standing Committee of the National People's Congress, the Ministry of Foreign Affairs, together with relevant departments, has drafted a draft of the Foreign State Immunity Law, which is submitted by the State Council to the Standing Committee of the National People's Congress for review. In December 2022, the 38th meeting of the Standing Committee of the 13th National People's Congress conducted the initial review of the draft of the Foreign State Immunity Law. Afterwards, in accordance with the legislative procedure, the Legal Work Committee of the Standing Committee of the National People's Congress will distribute the draft to relevant central departments, some provinces, higher education institutions, and legal research institutions for comments; Publish the draft in full on the website of the National People's Congress of China to solicit public opinions. The Constitution and Law Committee of the National People's Congress, the Foreign Affairs Committee, and the Legal Work Committee of the Standing Committee have successively held symposiums and argumentation meetings to listen to the opinions of relevant central departments and experts and scholars, and conduct research.The draft is generally mature and feasible, and it is recommended to make further modifications and improvements before it is released as soon as possible.

Since the 14th National People's Congress Standing Committee has fulfilled its duties in accordance with the law, it has attached great importance to foreign-related legislative work. The Legislative Work Plan of the Standing Committee of the National People's Congress for 2023 includes the Foreign State Immunity Law as a legal item for continued review. On June 28, 2023, the Third Session of the Standing Committee of the 14th National People's Congress voted to pass the Foreign Relations Law of the People's Republic of China, which stipulates: "The People's Republic of China shall grant immunity to foreign countries and their property in accordance with relevant laws and treaties and agreements it has concluded or participated in." On July 26, 2023, the Constitution and Law Committee of the National People's Congress held a meeting, and based on the review opinions and opinions from all parties, the draft was uniformly reviewed and revised and improved. The 5th meeting of the Standing Committee of the 14th National People's Congress reviewed the second draft of the Foreign State Immunity Law and made further revisions and improvements; On September 1st, the meeting passed the State Immunity Law of the People's Republic of China through a vote;

The Foreign State Immunity Law is based on China's national conditions and practical needs, referring to and drawing on relevant international treaties and practices, clarifying the principles and rules of China's foreign state immunity, determining exemption exceptions and related procedures. This law has a total of 23 articles, mainly stipulating the following content:

One is to establish the general principle of state immunity. Article 3 of the Foreign State Immunity Law stipulates that foreign countries and their property enjoy jurisdictional immunity in the courts of the People's Republic of China, except as otherwise provided in this Law. That is to say, in principle, Chinese courts do not exercise jurisdiction over foreign countries and their property, but if the situation meets the provisions of this law, Chinese courts can exercise jurisdiction. Meanwhile, according to Article 13 and Article 14, the property of foreign countries enjoys immunity from judicial coercive measures in Chinese courts; Unless otherwise provided by law, Chinese courts shall not take judicial coercive measures against foreign state property.

The second is to determine the circumstances in which Chinese courts can exercise jurisdiction over foreign countries and their property. Article 4 to Article 12 of the Law on the Immunity of Foreign Countries provide clear provisions for the scope of jurisdiction that courts of the People's Republic of China may exercise over foreign countries and their property, including the express acceptance of jurisdiction by foreign countries over specific matters or cases, litigation arising from commercial activities, litigation arising from the performance of labor or service contracts, compensation litigation arising from infringement, and arbitration related matters; Meanwhile, Article 14 provides clear provisions on the circumstances in which Chinese courts may take relevant judicial coercive measures. Overall, the provisions of the Immunity Law of Foreign States regarding the circumstances in which Chinese courts may exercise jurisdiction over foreign countries and their property are relatively strict and specific, consistent with relevant international treaties and practices.

The third is to establish special litigation procedures applicable to cases of foreign state immunity. Considering the special nature of foreign countries as parties to civil cases, Article 17 and Article 18 of the Foreign State Immunity Law make special provisions for the procedures related to the service of documents and default judgments in foreign state immunity cases. For civil cases involving foreign countries and their property, if there are no provisions 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 cases of foreign state immunity. According to Article 19 of the Law on the Immunity of Foreign States, Chinese courts shall accept proof documents issued by the Ministry of Foreign Affairs of the People's Republic of China on the factual issues related to whether the relevant countries in the case constitute foreign sovereign states and the service of diplomatic notes; Meanwhile, the law also stipulates that the Ministry of Foreign Affairs may issue opinions to the court on other issues involving major national interests such as diplomatic affairs. These regulations are conducive to ensuring and playing an important role of the national 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 privileges and immunity systems. Article 20 of the Law on the Immunities of Foreign States stipulates that the provisions of this Law do not affect the privileges and immunities enjoyed by foreign diplomatic missions, consular missions, special missions, relevant delegations and personnel, nor do they affect the privileges and immunities enjoyed by foreign heads of state, heads of government, foreign ministers and other officials with equal status under Chinese law, international treaties concluded or participated in by China, and international customs. This article clearly lists "international customs" as one of the legal basis for individuals to enjoy privileges and exemptions, which is the first time in China's legal system that "international customs" have been stipulated.

Q: What are the main characteristics of foreign state immunity laws?

Answer: As a specialized foreign-related law, the Foreign State Immunity Law's principles and rules are based on domestic rule of law, as well as international law and diplomatic practice. From a legal perspective, there are mainly the following characteristics:

Firstly, the Foreign State Immunity Law is a law that implements constitutional provisions and reflects the basic principles of international law. National sovereign equality is an important content of the Five Principles of Peaceful Coexistence stipulated in China's Constitution, and it is also a fundamental principle of international law. Adhering to the principle of national sovereignty equality is an important foundation for establishing China's foreign state immunity system. For example, in the first legislative purpose, it is clear that "protecting the legitimate rights and interests of the parties, maintaining national sovereignty and equality, and promoting friendly exchanges with foreign countries", in the third and thirteenth articles, the general principle of state immunity is stipulated, legislation clearly upholds national sovereignty and equality, and specific exceptions to state immunity are specified in relevant provisions based on international practice. These are all conducive to the equal protection of the legitimate rights and interests of the parties. The foreign state immunity system in our country is based on the principle of safeguarding national sovereignty and equality, which is fundamentally different from the arbitrary expansion of jurisdiction and the practice of so-called "long arm jurisdiction" by individual countries.

Secondly, the Foreign State Immunity Law is a law that stipulates the jurisdiction of Chinese courts over litigation procedures involving foreign countries and their property. The Foreign State Immunity Law mainly stipulates the issue of judicial jurisdiction in civil cases involving foreign countries and their property, and also makes special provisions for court proceedings such as document service and default judgments. From the main content of this law, it not only involves the question of whether Chinese courts can manage foreign countries and their property, but also makes special provisions on the issue of how to manage civil litigation procedures involving foreign countries and their property. This provides principles and rule guidance for Chinese courts to properly handle civil cases.

Thirdly, the Foreign State Immunity Law is a law with both judicial and diplomatic attributes. The immunity of foreign countries is not only a matter of judicial jurisdiction, but also involves national diplomatic affairs and policies, which may have some significant impact on relations between countries. Whether to grant immunity to foreign countries and their property, as well as what kind of immunity to grant, is a judicial issue and an important part 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 clarifying in which specific circumstances Chinese courts may have jurisdiction over civil cases involving foreign countries as defendants or involving foreign countries and their property. In order to ensure accurate understanding of the country's foreign policy in relevant cases, Article 19 provides specific provisions for the important role played by China's diplomatic authorities in the trial of cases involving foreign countries. These regulations are conducive to safeguarding national interests and also reflect the institutional characteristics of the foreign state immunity system, which has both judicial and diplomatic attributes.

Q: How is the principle of reciprocity of state immunity considered in the Foreign State Immunity Law?

Answer: Article 21 of the Foreign State Immunity Law stipulates that if the exemption treatment granted by foreign countries to the state and its property of the People's Republic of China 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, which means that countries should treat each other equally or non discriminatory in a certain aspect, with the aim of reflecting and achieving mutual respect, equality, and mutual benefit between countries. The Foreign State Immunity Law lists specific situations in which Chinese courts may have jurisdiction over civil cases involving foreign countries and their property, in accordance with relevant international treaties and practices. However, if a foreign country deprives, restricts or reduces the exemption treatment granted to our country, our country has the right to take necessary measures to counter and hedge according to the principle of reciprocity, such as adjusting the jurisdiction of civil cases involving the country and its property, in order to protect our sovereignty, security, and development interests.

Q: How to understand the interrelationship between foreign state immunity laws and civil procedure laws?

Answer: The Foreign State Immunity Law mainly solves the issue of judicial jurisdiction over civil cases involving foreign countries and their property. At the same time, special provisions are made for the court's litigation procedures such as document delivery and default judgments, providing a clear procedural legal basis for the court to hear civil cases involving foreign countries and their property. The Civil Procedure Law is the fundamental law that regulates the civil litigation system and is a general law in the field of civil litigation. It provides comprehensive provisions for the jurisdiction, trial, and enforcement of civil cases. The content of the Foreign State Immunity Law has specificity and is a special provision made for civil cases involving foreign countries as litigants. It is a "special law" in the field of civil litigation. Legally speaking, if there are provisions of special laws, the provisions of special laws shall apply first; Matters not covered by special laws shall be governed by the provisions of general laws. The content of the immunity law of foreign countries is relatively single and specific, and when courts specifically hear civil cases involving foreign countries, many procedures and issues require the application of the provisions of the Civil Procedure Law. Therefore, Article 16 of the Law on the Immunity of Foreign Countries stipulates that for civil cases involving foreign countries and their property, if there are no provisions in this Law, 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 14th National People's Congress, while passing the Foreign State Immunity Law, important amendments were made to the fourth part of China's Civil Procedure Law and other contents, which added provisions: "For civil litigation involving foreign countries, the relevant laws and regulations of the People's Republic of China on foreign state immunity shall apply; if there are no relevant laws and regulations, this Law shall apply."

Q: Does the principle and rules of foreign state immunity established by the Foreign State Immunity Law apply to the Hong Kong and Macao Special Administrative Regions?

Answer: 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 managing 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, state immunity rules or policies fall within the scope of foreign affairs of the state. The Hong Kong Special Administrative Region has the responsibility to apply or implement state immunity rules or policies decided by the Central People's Government, and shall not deviate from the above rules or policies, nor shall it adopt rules or policies different from the above rules or policies.

The Foreign State Immunity Law passed at the Fifth Session of the Standing Committee of the 14th National People's Congress established China's foreign state immunity system, including principles, rules, and related mechanisms, reflecting the national immunity rules and policies decided by the Central People's Government. After the implementation of the Foreign State Immunity Law, in accordance with the Basic Law of Hong Kong, the Basic Law of Macao, 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 shall follow the central people's government's direction towards the national immunity rules and policies reflected in the Foreign State Immunity Law.