Research On The Problem Of Ascertaining Foreign Laws In China

After the promulgation of the law of the People’s Republic of China on the application of civil legal relations concerning foreign affairs（hereinafter referred to as the law application law）in 2010,its provisions have made great progress compared with the previous ones,the most important thing is to clarify the subject of responsibility identified by the foreign law.Its judicial interpretation further clarifies the recognition standards that cannot be identified by foreign laws and the review procedures of foreign laws.However,in the process of practice,the practical effect of the law of application of law itself is not ideal.First of all,it is reflected in the distribution of the responsibility of ascertaining in foreign law.The mode of ascertaining in judicial practice is not consistent with the mode of ascertaining in legislative provisions,which leads to the practical problems not only because of the legislative provisions,but also because of the judges themselves in practice.Secondly,in the practice of foreign civil and commercial trials,there are some problems in the application of the way of finding out the foreign law,such as the application of the way of finding out the foreign law is unitary,some ways of finding out such as the center of finding out the foreign law,the application proportion of the third party organization and the treaty,the application proportion of the way of finding out the embassy is polarized,and the uniqueness of the way of finding out a case（a foreign civil and commercial case Only one way of finding out is used）,which also reflects that on the one hand,the provisions of the way of finding out in China’s foreign laws are not perfect,and the way of finding out in foreign laws can only continue the judicial interpretation in1988.The provisions of the interpretation have loopholes and are difficult to keep up with the times.Finally,through data investigation and analysis,the standards and procedures that foreign laws can’t find out are not perfect,which leads to the fact that foreign laws can’t find out and directly apply the local law of court excessively.In view of the above problems,this paper considers comprehensively the national conditions of our country,makes in-depth thinking on the progress and shortcomings of the current system of ascertaining foreign laws,affirms the rationality and necessity of the original solution to the problem of ascertaining foreign laws,puts forward the rationality and necessity of new solutions,and takes multiple measures at the same time.First of all,it is necessary to further clarify the rights and responsibilities of judges and parties in foreign law;secondly,it is necessary to standardize and make full use of every existing way of finding out;finally,it is necessary to further unify the standards and procedures that cannot be found out in foreign law,limit the abuse of "cannot be found out" and reasonably restrict the alternative way of "directly applying the local law of the court".