The Problems And Solutions Of Proof Of Foreign Law In Judicial Practice

Proof of foreign law is a crucial part of the trial process of international civil and commercial cases,and it is also a “bottleneck” problem in China's foreign-related civil and commercial trials.The successive promulgation of the Law of the People's Republic of China on the Application of Foreign-related Civil Relations Law(2010)and the Interpretation of the Supreme People's Court on the Application of the Law of the People's Republic of China on the Application of Foreign-related Civil Relations Law(2013)provides legal guidance for proof of foreign law law in our country.Although there are laws to be followed for proof of foreign law,there are still some problems in practice,such as a single way of ascertaining,different standards of ascertaining and non-standard ascertaining procedures.The problem of “foreign law cannot be identified ”is serious.The legislative omission and ambiguity lead to the problems in judicial practice have not been effectively solved.Therefore,we need to sum up the problems and experience in judicial practice,rationally examine and reflect on the existing problems in the provisions,combine practice with theory,and further improve Chinese proof of law system.The text of this article is divided into four parts.The first part is “the status of judicial practice ascertained by foreign law in China”.Through the Chinese judicial documents network,lawsdata network and other websites to search the application of the law of the People's Republic of China applicable to foreign-related civil relations law article 10 of proof of foreign law cases,the writer sorted out and counted the collected cases,and summarized the problems in the current practice of proof of foreign law,such as the single way of foreign law identification,different standards of identification and identification,and improper identification procedures.They are presented more visually in the form of tables,bar charts,etc.The second part is“Analysis of the reasons for the existence of several problems in the practice of foreign law”.This part mainly from the legislative and judicial perspective to explore reasons of proof of foreign law for the above problems.At the legislative level,theexisting legal norms are not systematic,the regulations are not clear,and the scope of regulation is not comprehensive,etc.At the judicial practice level,the costs of proof of foreign law are too high,and judges deliberately avoid the application of foreign laws to hear cases,etc.These factors jointly lead to various problems in the investigation practice.The third part is “the solution to the problem of finding out the practical problems of foreign law in China.” In view of the above problems and reasons,this part puts forward countermeasures and measures,such as perfecting the legislation of proof foreign law identification,standardizing the procedures of proof of foreign law,establishing the corresponding restriction and supervision system,and innovating the mechanism of proof of foreign law,so as to solve the problems in the practice of proof of foreign law and make the system of proof of foreign law work effectively.The fourth part is the conclusion,which is the extraction and summary of the full text.China needs to break through the barriers of foreign laws from the perspective of legislation and judicial practice,so as to truly solve the chaos in practice.