| Proof of foreign law is the subject that sits at the core of international conflict oflaws, or, as known in the civil law system, private international law. Proof of foreignlaw is the prerequisite and foundation of correct application. Finding out the contentof the foreign law correctly and applying those to the judgment are the key factorswhich reflect that one country maintains procedure to be just and narrowly protectsinterests not only for the natives. Also, it is the important condition of theinternational civil and commercial business order. Proof of foreign law ensuressolving the dispute concerning foreign affairs fairly, justly and in time, building agood and transparent legal system environment, protecting the domestic andinternational party's legitimate rights and interests and maintaining the confidence inChina's judicial system of countries all over the world. So, we should strengthen theresearch of proof of foreign law, advance theoretical research and judicial institutionalimprovement actively.In addition to the "Introduction" and "appendix", the full text of dissertation isdivided into eight chapters, about 150,000 words.Chapter one addresses the outline of proof of foreign law. Identifying foreign lawrefers to a series of specific activities of determining the existence and content offoreign law during the foreign-related civil proceedings according to the rules ofconflict guidelines. The main issues involve two disciplines: Private InternationalLaw and the civil law. The author considers that proof of foreign law belongs toprivate international law, but in the course of the study it can draw in a number ofCivil Procedure Law research results. We can discuss the systematic status of proof offoreign law from two aspects: Firstly, proof of foreign law is the only way of dealingwith foreign-related cases and the foundation stone of the applicable law. Secondly,proof of foreign law is a legal system which limits the application of a foreign law.Most countries (regions) prescribe proof of foreign law in the form of statute law. Inview of the legislation, there are three main models: one is to write proof of foreignlaw in the Civil Code, such as Russia; the second is to prescribe proof of foreign lawin international private law code, such as Switzerland; the third one is to stipulateproof of foreign law in civil procedural law, such as Germany. In addition, a smallnumber of countries have not available ways to identify the foreign law, and finding out foreign law is the question of judicial practice to be addressed.Chapter two explores the character of the foreign law. The fundamental questionto answer is whether foreign law is considered as law, or whether the law of anotherjurisdiction is merely a matter of fact, to be applied only if and when parties to thecase plead its application and prove its content and effectiveness. The matter of law orfact—the basic division of civil procedural law—arguments, and evolves into severaldifferent forms: Some believe that the foreign law is a simple fact, and other considersthat foreign law is a subsidiary fact. Some think that foreign law is the legalregulations which have the same effect of the native law, and others believe thatforeign law is the law which has different nature from that of native law. Some eventhink that foreign law is the fact relative to Non-litigation procedure and has the samenature to other facts. The character of foreign law is of extreme complexity, and cannot simply say that the foreign law is the matter of fact or law. From the materialismperspective, foreign law has both sides, one side is the matter of fact, and the otherside is the matter of law. In a word, it is a special fact or a strange law.Characterization of foreign law is of great importance,, but it can not solve all theproblems in proving foreign law. What kind of system of proving foreign law shouldbe adopted? We need consult the basic principles of private international law, the ownrule and the inherent requirements of foreign-related civil procedure. And then can wemake a proper decision at last.Chapter three analyzes responsibility assignment of proving foreign law. As faras the responsibility assignment of proving foreign law is concerned, there are threetheories in the abstract, namely "the theory on burden of litigant", "the theory onburden of judge" and "the theory of compromise". Lots of legislations in continentlaw family consider that the responsibility of proving foreign law should beundertaken by judges, and Germany, Holland, Belgium accept this viewpoint.Obviously different from other continent law family countries, France believes thatjudges only undertake the task of proving the foreign law in specific type cases. Inother situations, the litigant must find out the foreign law voluntarily. England defendsstubbornly the tradition that foreign law is the fact, and requests the litigant to providethe court with the content of foreign law according to the evidence rule. The judgesmaintain neutrality and negative. They do not have the right and duty to find out thecontent of foreign law. The situation in the United Sates is on the contrary. Their judges can refer to all kinds of material to proving the content of foreign lawaccording to the authority because the foreign law is treated not as the matter of factbut as law in term of article 44.1 of "Federation Civil action Rule". Generallyspeaking,this problem mostly rests on the pratice of courts.Chapter four discusses the method of proving foreign law. From the view ofcomparative law, there are two methods of proving foreign law, namely "definitionprinciple" and "non-definition principle". England accepts "the definition principle",and in England foreign law is regarded as the matter of fact which is proved by thelitigant through the expert witness. England believes that it vividly manifests themodel of adversary civil action, and it is also the best way of proving foreign law.Most of other countries adopt "the non-definition principle", and do not limit themethod of proving foreign law. According to this principle, expert witness is not thebest way, all methods may be used for proving foreign law. The reason why this kindof difference appears mainly is that England strictly defines the foreign law to be thematter of fact, and so there is no difference between the way of proving foreign lawand the way of proving other facts, both of which must be regulated by the strictEvidence Rule. For this reason, the England just has limited methods to prove foreignlaw, the main one of which is expert witness. In contrast with the England law, othercountries treat the foreign law as matter of law or as combination of fact and law, andspontaneously do not regard the way of proving foreign law as the same with the wayof proving other facts. The former is not limited by the Evidence Rule. Thereforethose countries' methods of proving foreign law manifest much flexibility. Althoughevery method has its own characteristics and values,none of them has absolutesuperiorities.From the pratical point of view, we can see that adoption ofcomprehensive methods is more scientific.Chapter five probes the affirmation of foreign law materials and interpretation offoreign law. After the court has obtained a large number Of materials about foreignlaw through various ways, judges use almost the same way in most of countries todeal with these materials which include the following several respects: Firstly, thecontent of foreign law is asserted by the court without the jury's judgment, no matterthe latter is participated in the litigation. The jury does not enjoy the speech right tothe question of foreign law. Secondly, besides Britain, the judges of other countries donot ascertain the content of the foreign law within the scope of evidence materialsobtained. They can follow one's own knowledge, experiences, etc., and thereat set up their understanding of foreign law. Thirdly, the judge should interpret the foreign lawaccording to the law family and its interpretative rules, and can't just reckon the literalmeaning of the legal provisions. In fact, it is far from simple. Due to the influence byhis own country's legal culture, a judge can't interpret foreign law very accuratelywhich will lead to justice problems about judgement.Chapter six investigates how to deal with the failure of proving foreign law. Asfar as failing to prove foreign law is concerned, there are many backup methodsleading the judge to verdict, such as "analogizing and applying native law","substituted foreign law by native law", "reject the party's claims or counterplea","applying the law that approximates or is similar to foreign law which are should beapplied", "covered by general principle of law", "applying the law which ascertain byother factors of the same problems, and so on. However, most of all countries applythe native law when they fail to prove foreign law on legislation and practice.No matter the way of "analogizing and applying native law" in Anglo-Americanlaw family or the way of "substituted foreign law by native, law" in continent lawfamily, there is no difference in result: both of them finally apply the native law. Thedifference is their theoretical foundations. Though other methods have their rationalityand are even closer to the essence of international private law than "applying nativelaw", those are not as succinct, lucid and lively as the latter, so it is difficult to gainthe favor of the judges and litigants.Chapter seven deliberates the judicial practice of proving foreign law in ourcountry. With the gradual increase of the foreign contacts, the number of foreignlitigation is even-increasing. We can say that proving foreign law in the trial practiceof our country is not rare. But it's a pity that there are some serious problems in thecourt of our country during the process of finding out foreign law. On the one hand,we pay little attention to proving foreign law, and still get used to applying the law ofPeople's Republic of China. Lots of cases which require proof and application offoreign law finally apply the law of the People's Republic of China. On the other hand,the results of treatment differ in dealing with the concrete case in regional court.Responsibility and method of proving foreign law confused the litigants. The aboveconditions influence the unity and authoritativeness of the justice, which has producedsome unnecessary negative effects on international communications. To solve theabove problems, besides improving the legislation, we should also positively reply inthe practice of trial: Firstly, courts at all levels and all countries should improve understanding of the importance of proving and applying foreign law, strictly proveand apply foreign law correctly in accordance with legal stipulation, and overcome"the complex of turning to countryside; Secondly, the Supreme Court of People'sRepublic of China should instruct all levels court to normalize the operation in thecourse of finding out the foreign law through judicial interpretations, cases,instructions, and answers to subordinate court, and so on. The Supreme Court shouldsupervise and guide the running of proving foreign law, and make great efforts toovercome the confused situation in the judicial practice.Chapter eight argues about our country's legislation and its improvement ofproving foreign law. With the development of the society and economics, more andmore cases demand proving and applying the foreign law. As a result, we need rulesof law to regulate the problems and construct comparatively complete legal systemsof proving foreign law to ensure correct application of foreign law, to vindicatelegitimate rights and interests both of domestic party and foreign party, and topromote the international exchanges. Unfortunately, the relevant rules of provingforeign laws are still relatively simple and crude at present in our country. A lot ofregulations are not very rational either, and the operation conditions are not idealenough. Thus the situation cries for improvement of our country's legislation of proofof law in light of actual conditions and practical experiences of other countries. Theauthor proposes future establishment of framework on ascertainment of foreign law.
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