Research On Chinese Legislation On The Ascertainment Of Foreign Law

As a legal department or legal discipline that adjusts the legal relations of foreign-related civil and commercial affairs,international private law not only provides rules for the application of laws,but also provides foreign-related lawsuit procedure rules and foreign-related arbitration procedure rules.When a foreign-owned commercial and commercial dispute occurs,the first thing that needs to be resolved is the issue of jurisdiction.However,after the jurisdiction is determined,the issue of law application needs to be resolved.Because the legal relationship between foreign-related civil and commercial affairs adjusted by international private law is related to the laws of two or more countries or jurisdictions,the choice of law is inevitable.When a domestic court decides to apply a foreign law in a case involving civil and commercial affairs in foreign countries in accordance with the guidelines of conflict rules in the country or according to the choices of the parties,it will not only need to formulate procedural rules for ascertaining the contents of the foreign law,that is,clearly stipulating the contents of the foreign law.The method and path must also provide for the identification of the subject’s rights and responsibilities and how to apply the law when the content of the foreign law cannot be ascertained.The identification of the contents of foreign law is not only closely related to the rights and obligations of parties involved in foreign-related civil and commercial affairs,but also may affect the relations between relevant countries.It can be seen that the identification of the content of foreign law is undoubtedly a relatively important system in private international law.Because of this,almost all countries’legislation on private international law has clearly stipulated the system.However,since the establishment of the People’s Republic of China for more than 60 years,China has no legislative provisions concerning the identification of the content of foreign laws.When people’s courts hear cases involving the need to ascertain the content of foreign law,they mainly follow the rules of judicial interpretation..The relevant judicial interpretation is not only low in legal order,but the relevant regulations are not very scientific.The promulgation of the Law of the People’s Republic of China on the Application of Civil Relations in Foreign Relations in 2010 made clear for the first time the identification of the content of foreign law in China’s international private law legislation.The law not only clearly stipulates that the people’s court can excavate the content of a foreign law ex officio.Arbitration agencies,administrative agencies,and parties,under certain circumstances,will also bear the responsibility of ascertaining the content of a foreign law.and they may find it impossible to ascertain the contents of a foreign law.Problems such as relief channels have also made explicit provisions that directly apply our country’s laws.Practice has shown that although there are many desirable places in the provisions of the Law for the identification of the content of foreign laws,the incomplete and unscientific provisions of the law are increasingly apparent.There is a need for specialized research.Based on this,this article takes "on the provisions of our country’s investigation of the content of foreign law" as the topic and attempts to explain the legislative basis,legislative features,and major shortcomings of China’s identification of the content of foreign law based on the basic theoretical explanations identified in the content of foreign law.,And we will conduct useful discussions on how to improve our country’s legislative provisions on the identification of the content of foreign laws and look forward to benefiting our country’s legislation and practice on the identification of foreign law content.The full text includes the following five parts in addition to the introduction:The first part explains the concepts,features,and meanings identified in the content of foreign law.The identification of the content of the so-called foreign law refers to how a foreign country’s court in the trial of foreign-related civil and commercial cases should apply a certain foreign law to adjust the rights and obligations between the parties according to the guidelines of its own conflict rules.Whether or not the law exists and how to determine the specific course of the foreign law.It not only has a direct impact on how the courts accept the law,but also directly relates to the specific rights and obligations of the parties to the case.The second part discusses the legislative basis for the identification of the content of foreign law in China.The legislative basis for the identification of the content of foreign law in China mainly includes:the legislation and practice of the international community on the identification of the content of foreign law;and the provisions on the identification of the content of foreign law in the judicial interpretation of China.The former mainly includes the following four types:it is entirely determined by the judge ex officio;in principle,it is determined by the judge ex officio;it is fully proved by the party’s evidence;in principle,it is proved by the party’s evidence.The latter stipulated only the method of ascertaining the contents of the foreign law,but did not clearly specify the legal liability of the subject.The third part elaborates the characteristics of China’s legislation on the identification of foreign law content.China’s legislative provisions on the identification of the content of foreign law mainly embody the following basic features:it clcarly stipulates the methods and ways of ascertaining the content of foreign law;it clearly stipulates how to determine the content of a foreign law cannot be ascertained;it clearly stipulates that the content of a foreign law cannot The law at the time of identification applies.In the fourth part,it discusses China’s legislative imperfections regarding the identification of foreign law content.Although our country’s provisions concerning the identification of the contents of foreign law have many characteristics and a bit,there are still major shortcomings:the provisions concerning the method and route of identification of the content of foreign law are not complete;there is no clear provision for the determination of legal liability of the subject;Our country has a tradition of judging the judicial practice of foreign law;the common practice of the international community to ascertain the content of foreign law has not been fully reflected.The fifth part discusses the perfection of China’s legislation on the identification of foreign law content.The legislative provisions on the identification of the content of foreign law in China should be improved at least from the following aspects:the content of the foreign law should be further clarified and the distribution of responsibilities of the subject should be ascertained;the methods and paths for ascertaining the contents of the foreign law should be further broadened;Find out how to handle it.In order to ensure the correct application of the law by the courts involved,promptly resolve foreign-related commercial disputes,and promote friendly civil and commercial exchanges between China and other countries and regions in the world,and play its due role in building a community of human destiny.