On The Research Of Ascertainment Of Foreign Law

In the context of China’s “One Belt and Road” initiative being widely supported and actively responded by countries along the route,economic exchanges between our country and other countries,especially those locate along the route have become more frequent,and the number of foreign-related civil and commercial cases heard by our courts has increased rapidly,among which the number of cases involving the identification and application of foreign law is also increasing.These changes put forward more requirements on our country’s foreign law ascertainment system.Being a basic system of private international law,the ascertainment of foreign law is an indispensable link in the trial of foreign-related cases because it not only plays an important role in protecting the interests of the parties but also works as the prerequisite for correctly applying foreign law for trial cases.In 2011,China promulgated the "Law of the People’s Republic of China on the Application of Laws in Civil Relations Concerning Foreign Affairs"(hereinafter referred to as the "Law of the Application of Laws"),which legislatively established the system of ascertaining foreign law in our country,marking that our country’s private international law has entered a new era.In 2013,as the Supreme People’s Court also promulgated the Interpretation of Several Issues Concerning the Application of the "Law of the People’s Republic of China on the Application of Law on Foreign-Related Civil Relations(1)"(hereinafter referred to as the "Judicial Interpretation(1)"),more specific and detailed regulations have been introduced.However,as the number of foreign-related cases heard by courts has increased significantly,more and more problems have been exposed in judicial practice.In that situation,the current "Law on the Application of Law" and its judicial interpretations have been unable to meet the current needs of hearing foreign-related cases in our country.In foreign-related judicial practice,when it comes to the ascertainment of foreign law,the first thing we need to resolve is figure out who should ascertain foreign law,that is to say,we need to have a clear and even distribution of responsibilities.The identification of the nature of foreign law is an inevitable prerequisite.What a pity that neither the Law on the Application of Laws nor its judicial interpretations clearly stipulate the nature of our country’s foreign law,which results in an unreasonable distribution of responsibilities in judicial practice.In addition,since the legislation doesn’t specifically specify the clear standards that judges can use to determine whether foreign law is ascertained or not,which leads to the improper expansion of judges’ discretionary powers and unreasonable frequency that foreign law cannot be ascertained from time to time.As a result,it fails to fully protect the legality of the parties and a even trial.Finally,there is a lack of supporting supervisory measures when parties ascertain foreign law and the stage and the court determines that whether foreign law cannot be investigated or not.Besides,the lack of relevant legislative provisions on the issue has resulted in the opacity of the entire process of ascertainment of foreign law,ambiguity in the judgment documents,and low effectiveness of the ascertainment of foreign laws in judicial practice.Therefore,improving the relevant content of the foreign law ascertainment system and ensuring the correct application of the law are important issues worthy of discussion,which has certain theoretical research value and practical significance.This article aims to use two research methods----literature research and case analysis,and selects a typical case for in-depth analysis,trying to understand the ascertainment of our country’s foreign law in judicial practice.And the article aims to analyze the problems that found in judicial practice and and the root of those problems.Based on the actual situation of our country,by learning from the advanced experiences of other countries,the article will put forward several suggestions for improving our country’s foreign law ascertainment system.This article will be divided into four parts:The first part briefly introduces the relevant facts and judgment results of the Qingdao Hangmei Company v.Maersk Company’s transportation contract dispute case.Through in-depth analysis of the court’s practices in the process of foreign law ascertainment,it summarizes three controversial issues related to the ascertainment system: one is the division of responsibilities,one is how to determine whether foreign law cannot be ascertained or not,and another is the supervision of the process of ascertainment of foreign law.In the second part,this article will introduce the basic theoretical analysis according to the three controversial issues raised in the first part.From a theoretical perspective,it discusses the nature of foreign law and the distribution of responsibilities,analyzes the specific standards that cannot be used to determine whether the foreign law can be ascertained or not from the perspective of the judge and the parties,and the supervision of the process of ascertainment of foreign law.The third part analyzes the flaws in the judicial practice of our country’s system of ascertainment of foreign law based on the given case.Main problems include the unclear distribution of responsibilities,the over-generalization of ascertainment standards that are used to determine the result of ascertainment of foreign law,and the lack of supervision mechanism in the process..The fourth part,in response to the problems,combined with the experience of other countries that we can learn from,based on our country’s actual conditions,will put forward some reasonable suggestions.Firstly,clarify the distribution of responsibilities,and develop a new model of cooperative ascertainment between the judges and parties.Secondly,set reasonably subjective and objective standards that can be used to as a tool to determine whether foreign law can be ascertained or not.Finally,improve supervision mechanism for the process of ascertainment of foreign law,strengthen court internal supervision and social supervision,and the arguments about whether foreign law can be ascertained should be recorded in judgment documents so that the ascertainment process can open and even.