학술논문
외교면제와 국가면제의 관계
이용수 294
- 영문명
- The Relationship between Diplomatic and State Immunity from the Perspective of Immunity from Adjudicative Jurisdiction
- 발행기관
- 국제법평론회
- 저자명
- 김태헌(Taehon Kim)
- 간행물 정보
- 『국제법평론』제58호, 43~71쪽, 전체 29쪽
- 주제분류
- 법학 > 법학
- 파일형태
- 발행일자
- 2021.02.28
6,280원
구매일시로부터 72시간 이내에 다운로드 가능합니다.
이 학술논문 정보는 (주)교보문고와 각 발행기관 사이에 저작물 이용 계약이 체결된 것으로, 교보문고를 통해 제공되고 있습니다.
국문 초록
영문 초록
Diplomatic immunity and State immunity under international law are considered quite similar but not identical. In many cases both immunities have appeared concurrently in the same proceedings of the national courts, but the courts have mostly emphasized the differences rather than the similarities between them. Then why is it that the two immunities are brought up so often together in the same proceedings? What is the relationship between them? This article tried to answer these questions limiting the focus on immunities from adjudicative jurisdiction. Historically, diplomatic immunity was established earlier than State immunity, and both were intended to protect the independence and equality of States. Over time, however, the two immunities have developed to have different rules and exceptions based on different histories and justifications. Due to the recent emergence and the wide acceptance of the restrictive doctrine of State immunity in national legislations and judgments, there has been an increasing tendency to divide acts of State into sovereign acts (acta jure imperii) and acts of commercial or private law nature (acta jure gestionis), and then apply State immunity only to the former. In practice, diplomatic and State immunity are increasingly intertwined, and it is often advised and now common practice to sue against both the diplomat directly involved and his sending State. It is submitted that this is because of the special position of a diplomat who enjoys immunity ratione personae and materiae as a representative of State. Based on the acts performed by a diplomat in the exercise of his official functions, both the diplomat and his sending State could be defendants, and thus whether diplomatic or State immunity or both could be invoked in the same proceedings of a national court can be an issue. The increasing tendency of diplomatic and State immunity being intertwined can become more prevalent under the wide spread of the restrictive doctrine of State immunity. As each domestic law on State immunity varies in the scope of and exceptions to immunity among States adopting the restrictive doctrine, whether a State would be entitled to State immunity could be different under the domestic law or the customary international law in case there is no national legislation on State immunity. This situation makes a plaintiff more confused when choosing a defendant and thus more motivated to strategically sue the diplomat and the sending State together. Real action relating to mission premises is a good example.
목차
Ⅰ. 들어가며
Ⅱ. 외교면제와 국가면제의 비교
Ⅲ. 외교면제와 국가면제의 착종
Ⅳ. 나오며
키워드
해당간행물 수록 논문
참고문헌
관련논문
최근 이용한 논문
교보eBook 첫 방문을 환영 합니다!
신규가입 혜택 지급이 완료 되었습니다.
바로 사용 가능한 교보e캐시 1,000원 (유효기간 7일)
지금 바로 교보eBook의 다양한 콘텐츠를 이용해 보세요!