On The Determination And Limitation Of The Impossibility Of Ascertaining Foreign Law In My Countr

In international civil and commercial trials,the identification of foreign laws that should be applied according to the guidelines of conflict norms is related to the application of law in the trial of cases and is an indispensable link in the formation of judgments.Regarding the issue of the identification of foreign laws in our country,the most prominent issue is that the relevant provisions on the impossibility of foreign law ascertainment are too principle and general.In practice,there is a tendency to "abuse foreign laws to find out what cannot be done",which makes it difficult for conflict norms to truly play a role.In response to this problem,this article starts with the rationality principle of the inability to identify and restrict foreign law investigations,analyzes the main problems and causes that cannot exist in the legislation and practice of foreign law investigations in our country,and draws on the foreign laws to identify foreign laws that cannot be identified.The main legislative experience of China has perfected my country’s foreign law ascertainment system from two aspects: the clarification of the criteria for ascertainment of impossibility and the limitation of the judge’s authorityIn addition to the introduction and conclusion,this article consists of four parts:The first part focuses on the theoretical analysis.After clarifying the connotation of the impossibility of foreign law,it discusses the necessity of following the principle of rationality when determining that the foreign law is impossible and the basis for restricting the impossibility of foreign law.The requirement of the principle of rationality is mainly reflected in the establishment of criteria for determining that the determination of impossibility should be emphasized on functionalism and pragmatism;the basis for restricting judges’ determination of impossibility is mainly the restriction of the judge’s discretionary power,and limiting the judge’s determination of impossibility is subject to legal supervision.An inevitable requirement is a necessary guarantee for the application of foreign laws.The second part focuses on the system of the identification of foreign law in China.There are two problems in the practice of the identification of foreign law : in legislative practice,there are unreasonable division of responsibilities,There are fewer qualifications and unclear basis for determination;in judicial practice,courts and courts have shown a tendency to abuse the system of "foreign law cannot be found".In-depth analysis is not difficult to find that the main reason for these problems lies in the lack of the concept and system of liability in my country’s foreign law,and there is also a tendency to regard foreign law as "facts." Therefore,in order to establish a reasonable foreign law verification system in our country,two issues must be paid attention to: clarify the concept of foreign law verification responsibility,design and stipulate reasonable foreign law verification responsibility rules;clarify that foreign law is not a "fact",It is a "law of a special nature",which cannot deal with the investigation of foreign law like a "fact" proof.The third part casts the perspective outside the territory.Through the observation of the legislation and judicial practice that restrict the identification of foreign laws in foreign countries,it can be found that there are many standards and restrictions on the identification of foreign laws that cannot be identified in the legislation.A common practice adopted by countries.The limitation of foreign law investigation cannot be carried out mainly from the two aspects of restricting judges’ discretion in foreign law investigations and setting standards for the determination of investigations.This also provides two aspects for our country’s foreign law investigation system.Legislative experience from different perspectives: one is to restrict the judge’s power to determine;the other is to standardize the selection of methods and channels for investigation.The fourth part draws on the practical experience of the foreign law verification system in foreign countries,and aims at the problems that exist in our country’s foreign law verification system.From the two aspects of clarifying the identification standard and restricting the judge’s power to identify foreign law,It is found that the system cannot be improved.Specifically,in terms of identification standards,it is necessary to clearly identify the responsibility of the responsibility,expand and improve the existing methods of identification;in terms of restricting the identification power of judges,stipulate the duty of diligence of judges,and at the same time,through the higher courts Recognition conducts supervision and review to realize the external supervision of judges’ power of recognition.