Proof Of Foreign Law In China:A Positive Research

With the promotion of the policy of "The Belt and Road initiative ",the trade field between China and other countries will be further widened,and the matching foreign-related legal system will also be crucial.In the trial of foreign-related civil and commercial cases,the proof of foreign law is often included.The perfection of foreign-law-proof system plays a vital role in the future development of global economy in our country.This paper focus on positive research method,inducing the case of litigant choosing to apply foreign law,the case of litigant proofing foreign law,the case which is assisted by research center of foreign law,the reason for the failure of proofing foreign law and the situation of adopting legal opinion issued by Chinese or foreign law scholars and experts.Through analyzing the representative cases by case study research method,the paper explores the existing problems of proofing of foreign law.Compared with the situation before the adoption of Law of the Application of Law for Foreign-related Civil Relation,China has made much progress in proofing of foreign law but there are so many problems.First and foremost,court confounds the providing for foreign law with proof of foreign law.Although the judicial interpretation by Supreme People's Court provides that providing foreign law by litigant is just one of methods for courts to prove foreign law,some judges still want to pass their responsibility to litigants.Second,the system of proving foreign law by experts is imperfect.Legal opinions issued by Chinese or foreign law scholars and experts is one of the most common methods to prove foreign law.Since there is no clear stipulation about the qualifications of experts and nature of legal opinion,judges take different approaches for assessment of the nature of legal opinions in practice.Last but not least is misapplication of “the failure of proofing foreign law“.There have been several cases in which the judgments show that the judge gets conclusion ‘failure to prove foreign law' directly after the litigant cannot provide foreign law.Even though the judgment shows courts have already tried to prove foreign law,there no description about the process to prove foreign law by judge.Above-mentioned problems are extremely common in the judicial practice.To resolve these problems,this paper provides the corresponding suggestions.The first one is improving the relevant measures of proof of foreign law so as to make clear the cooperative subject relation between litigant and court in proving foreign law,establishing procedure for litigant to apply to the court for assistance to proof of foreign law.The second step is to perfect the system of proof of foreign law by experts.It mainly discusses the consummation of the system of proof of foreign law by experts from the following three dimensions,which is clarifying the qualifications of expert,the nature of legal opinion issued by Chinese or foreign law scholar and the tort liability of expert when they offered wrong legal opinions to court.The third one is building a supervision mechanism of proof of foreign law.To prevent judge from arriving at a conclusion arbitrarily,it is essential to add the reasoning section in first trial court verdict and in a second-review proceedings.By using the positive research method and the case study research method,and with the data from PKULAW database and the Peoples Court judgments online database,this paper study the situation and problems in proving foreign law and its improvement methods.