Sovereign immunity

Sovereign immunity (주권면제) is a legal doctrine by which the state cannot commit a legal wrong and, accordingly, is immune from civil suit or criminal prosecution.

Under international law, and subject to some conditions, countries are immune from legal proceedings in another state. This stems from customary international law. The United States recognizes this concept under the Foreign Sovereign Immunities Act (1976).

Sovereign immunity, or international comity, is available to countries in international court but if they are acting more as a contracting body (e.g., making agreements in regards to extracting oil and selling it), then sovereign immunity may not be available to them.

Nowadays in the international business transactions, the Korean government, by itself or through government agencies, state-owned banks and enterprises, are engaged in commercial activities such as borrowing money, procuring goods and services and investment in private companies. In such cases, the state is obliged to waive the sovereign immunity by relevant agreements which used to be a boilerplate clause.

Key words
sovereign, state, immunity, international comity, waiver

Background of the Doctrine
The sovereign immunity doctrine has a foundation in common law - the U.K. and U.S. laws.

United Kingdom
Historically, the general rule in the United Kingdom has been that the Crown has never been able to be prosecuted or proceeded against in either criminal or civil cases. The only means by which civil proceedings could be brought were:
 * by way of petition of right, which was dependent on the grant of the royal fiat (i.e. permission);
 * by suits against the Attorney-General for a declaration; or
 * by actions against ministers or government departments where an Act of Parliament had specifically provided that immunity be waived.

The position was drastically altered by the Crown Proceedings Act 1947 which made the Crown (when acting as the government) liable as of right in proceedings where it was previously only liable by virtue of a grant of a fiat. With limited exceptions, this had the effect of allowing proceedings for tort and contract to be brought against the Crown. Proceedings to bring writs of mandamus and prohibition were always available against ministers, because their actions derive from the royal prerogative.

Criminal proceedings are still prohibited from being brought unless expressly permitted by statute.

As the Crown Proceedings Act only affected the law in respect of acts carried on by or on behalf of the UK government, the monarch remains personally immune from criminal and civil actions. However, civil proceedings can, in theory, still be brought using the two original mechanisms outlined above - by petition of right or by suit against the Attorney-General for a declaration.

The monarch is immune from arrest in all cases, and members of the royal household are also immune from arrest in civil proceedings. The monarch's goods cannot be taken under a writ of execution, nor can distress be levied on land in their possession. Chattels owned by the Crown, but present on another's land, cannot be taken in execution or for distress. The Crown is not subject to foreclosure

United States
In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party.

In Hans v. Louisiana (1890), the Supreme Court of the United States held that the Eleventh Amendment (1795) re-affirms that states possess sovereign immunity and are therefore generally immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak (1991), the court explained that
 * we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention."

In Alden v. Maine (1999), the Court explained that while it has
 * sometimes referred to the States’ immunity from suit as "Eleventh Amendment immunity[,]" [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.

Writing for the court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."

However, a "consequence of [the] Court's recognition of pre-ratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law." Northern Insurance Company of New York v. Chatham County (2006 emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County (2003), and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power.'" Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979).