A Study On The Identification Of Foreign Laws In The Practice Of Civil And Commercial Judgment In China

The promulgation of the Law of the People’s Republic of China on the Application of Law in Foreign-related Civil Relations(hereinafter referred to as the Law on the Application of Law)provides guidance for the judicial practice of the determination of domestic and foreign national laws in domestic and foreign-related civil and commercial trials.However,due to the variability and uncontrollability of judicial practice,as well as the fact that the law is not perfect,systematic and detailed enough at the legislative level,the court will suffer from various difficulties in the process of finding out foreign laws when trying foreign-related cases.At present,the investigation of foreign laws will fall into some problems such as insufficient channels for the investigation of foreign laws,inconsistent examination standards,imperfect legal procedures and so on.There are even serious problems that lead to the invalidation of relief.Loose legislative norms and broad legal provisions make it difficult to solve these problems deep in judicial practice.Therefore,this paper mainly based on the perspective of empirical analysis,analysis of the problems existing in the practice of foreign law identification,and analysis of the reasons,and put forward targeted suggestions for improvement.For the present judicial practice reference in article 10 of the law applicable law and collection of the relevant case,review and summarize some typical foreign-related disputes,the study found the following problems: the parties to provide and ascertain foreign law concept confusion,find out the nature of foreign law of cognizance is differ,auxiliary source type if there are no relevant provisions,find out the way is not clear whether the end,etc.At the same time,based on the legislative and judicial perspectives,this paper carried out a study on the causes of the difficult problems in the identification of foreign laws in judicial practice,and found that the reasons for the problems are as follows: There are unclear responsibilities of the subject responsible for the identification of foreign laws,some link conflicts and link duplication problems in the legal process of identification,and no effective relief channels for the unidentifiable foreign laws.According to the above problem,this paper puts forward Suggestions on the effective processing and optimization,mainly from two aspects to perfect our system of foreign law determine,one aspect,is under the existing foreign method to find out the institutional framework,find out the supporting measures of perfecting the relevant foreign law,such as the way to measure to improve the Chinese and foreign legal experts,streamline our embassies and consulates,find out the judicial assistance agreement procedures,etc.;Another aspect,it is through the new judicial interpretation to the existing foreign method to find out the system integration and fill the blank of the legislation and to improve the system of foreign law to find out,such as the nature of foreign law interpretation and determining ascertain foreign law procedures,time limit and contents and forms of the foreign law,the parties can’t find out the foreign law remedies and legal relief,etc.