A Study On The Ascertainment Of Foreign Law

Ascertainment of foreign law is a very important subject of international conflict of laws, it is the prerequisite and foundation of correct application of foreign law. Finding out the contents of the foreign law correctly and applying them to the judgment are the key factors which reflect one country maintains just procedure and not narrowly protects interests for its natives. Also, it is the important condition for the international civil and commercial business order. Ascertainment of foreign law ensures solving the disputes concerning foreign affairs fairly, justly and in time, building a good legal system environment, protecting the domestic and international parties legitimate rights and interests and maintaining the confidence of countries all over the world in China's judicial system. So, we should strengthen the research of ascertainment of foreign law and advance theoretical research and judicial institutional improvement actively. In my paper I will do a study on the ascertainment of foreign law in five parts, both on the theoretical aspect and practical aspect. Plus, I will also present some recommendations on legislation of the ascertainment of foreign law in China.Chapter one addresses the defining and status of ascertainment of foreign law. Identifying foreign law refers to a series of specific activities of determining the existence and content of foreign law during the foreign-related civil proceedings according to the rules of conflict guidelines. The main issues involve two disciplines---Private International Law and the civil law. We can discuss the systematic status of ascertainment of foreign law form some aspects: Firstly, ascertainment of foreign law is the identification of the function of the needs of choice-of-law function, which is one of the major advantages of private international law; Secondly, ascertainment of foreign law is for the ultimate need of identifying the basic requirements of the applicable law; Thirdly, ascertainment of foreign law presents principles of fairness and mutual benefits of the international private law.Chapter two explores the character of foreign law. By analyzing the theories of"application of foreign law"which is an essential issue of private international law, I will elaborate these different theories on the application of foreign law which lead to different identification on the nature of foreign law: whether it is a fact or it is a law. I believe that foreign law should be identified as"law"in order to conform with the international civil and commercial exchanges trend. Characterization of foreign law is of great importance, but it can not solve all the problems in proving foreign law. What kind of system of proving foreign law should be adopted? We need to consult the basic principles of private international law, its own rule and the inherent requirements of foreign-related civil procedure, then at last we can make a proper decision.Chapter three analyzes responsibility assignment of proving foreign law. As far as the responsibility assignment of proving foreign law is concerned, there are four theories in the abstract, namely"the theory on burden of litigant","the theory on burden of judge","judges ascertain foreign law according to their authority, the parties do not need to present evidence"and"in principle, the judges would ascertain foreign law, but the parties also have the responsibility for help". Lots of legislations in continent law family consider that the responsibility of proving foreign law should be undertaken by judges, such as Germany,Holland,Belgium accept this viewpoint. Obviously different from other continent law family countries, France believes that judges only undertake the task of proving the foreign law in certain kind of cases, in other situations, the litigant must find out the foreign law voluntarily. England defends stubbornly the tradition that foreign law is the fact, and requests the litigant to provide the court with the content of foreign law according to the evidence rule, the judges maintain neutral and negative, they do not have the right and duty to find out the content of foreign law. The situation in the United Sates is on the contrary, their judges can refer to all kinds of material to proving the content of foreign law according to the authority because the foreign law is treated not as the matter of fact but as law in term of article 44.1 of"Federation Civil action Rule". Generally speaking, this problem mostly rests on the practice of courts.Chapter four discusses the method of proving foreign law. Starting over with the undertakers and approaches of when foreign law ascertainment, referring to different ways to study it in some countries and the current worldwide trend on the two issues, we make the conclusion that, as regard to the undertakers to ascertain foreign law, we need to structure a court-led, party-centered procedure; as regard to the approach, it's necessary to widely refer to other countries'practices in both legal families and make us of them.Chapter five focuses on the application of foreign law. After the procedure of ascertaining foreign law, two situations may occur. Firstly, the content of the foreign law is confirmed and the judge will only need to interpret the article and apply it on specific cases; secondly, if the content of the foreign law is obscure or the foreign country does not clearly set up the"solution"on this specific case, the judge is reliable to take some remedial measures. However, the foreign law identification process has not yet ended, the court need to confirm the contents of the laws of the state according to a certain procedure,to determine whether the foreign law can be applied to the controversial foreign-related civil and commercial cases. After confirmation of foreign law, as to the legal system, legal tradition, legal concepts, such as the meaning of the term is not the same, the judge must determine the interpretation of foreign law in order to identify the basis of foreign law to a magistrate in the case foreign law could not be identified, means that judges and related parties have not been able to identify the content of foreign law though the statutory procedures and methods, or they have found that foreign law, but on the related issues of it does not prescribe. Under these conditions, how to deal with them? This is the judicial practice of the problems. The court determines whether the foreign law can not be identified. Judge should follow certain standards and norms to determine the foreign law. On the problem of foreign law could not be identified, the treatment method as follows: Firstly, the direct application of the laws of the state, which is the method mostly used by many countries. Secondly, the court rejects the claim, or does not accept the defendant's defense. Thirdly, the original application should be similar to the applicable foreign law. Fourthly, in accordance with connections to determine the applicable law. Fifthly, the application of the general law. Foreign law could not be identified in China, it may give the court the right to trial by general principles of law. Of course, the court may consider the relevant provisions of international treaties if we have participated in them, it may also consider the application of general international practice if international treaties do not have the relevant provisions.In order to strengthen China's communication and cooperation with international communities and maintain stable relationship in international economic trade, we must put our emphasis on the construction of private international law which is specialized in solving disputes concerning civil and commercial foreign affairs. And to establish the perfect and rational system of the ascertainment of foreign law is essential for the development of the private international law.