Research On The Ascertainment Of Foreign Laws In China

With the continuous expansion of opening to the outside world,the number of international civil and commercial cases is increasing day by day,the types of cases are becoming richer and the details are becoming more complicated,which brings new challenges to private international law,so the court needs to identify and apply foreign laws more accurately and efficiently.Although there are some legislative provisions on the identification of foreign laws in China,there are still many shortcomings to be improved.This paper attempts to summarize the identification system of foreign laws through literature research and case analysis,analyze the problems and propound some advises on the identification system of foreign laws in China.The nature of foreign law is the basic problem of foreign law identification,and the understanding of the nature of foreign law will affect the distribution of identification responsibility and the setting of identification channels.Although there are differences between different theories,the integration of the two models has become the main trend in practice.Our country thinks that foreign law has mixed characteristics.If we choose between facts and laws,we still prefer to regard foreign law as law,and divide the responsibility of identification according to whether the court applies foreign law according to conflict norms or the parties agree to apply foreign law.The court should play a leading role in the identification,so the identification subject of foreign law is the court,and the parties only play an auxiliary role in the identification process.The scope of identification includes not only written laws,but also auxiliary legal information such as precedents and theories.Laws and judicial interpretations are gradually improving,there are seven specific ways to find out in China at present,among which Chinese and foreign legal experts,international commercial expert committees and legal identification institutions are used frequently.Through the analysis of some cases,it is found that there are some problems in the judicial practice of foreign law identification in China,such as unclear distribution of identification responsibility,difficult operation of some identification channels,vague identification criteria of foreign law identification failure,lax rules for determining the content of foreign law and insufficient judgment reasoning.In order to improve the system,on the basis of accurately dividing the responsibility of identification,the channels of identification by embassies and consulates should be unblocked,and the qualifications of experts and the form of expert opinions should be further stipulated.At the same time,it is necessary to clarify the details of the identification criteria to reduce the vague space,clarify the identification period and the need to exhaust the identification channels,relax the requirements for the form of legal opinions,and unify the admissibility criteria of foreign laws through different channels.In addition,it is necessary to clarify the cross-examination rules for determining the content of foreign laws and strengthen the reasoning of judgments in order to further improve the accuracy of identifying foreign laws.