Discussion On The Application Of Foreign Law

Foreign law is inevitably applied to the judgment foreign-related civil and commerciallawsuit because of it is characteristic of foreign-related. But the role of foreign law in juridicalpractice varies from country to country because different lawmakers or juridical bodiesdifferently define foreign law. It is regarded as a fact in some countries while as a law in somecountries or as a mixture in some other countries. If foreign law is regarded as a law, should itbe defined still as a foreign law or as a part of domestic law? To answer this question，itinvolves a deeper discussion on why foreign law should be applied? Two aspects, namely thetheoretical one and institutional one, should be taken into account when answering whyforeign law should be applied. In theory, it includes two aspects: the necessity and thelegitimacy of the application of foreign law. The application of foreign law should be basedon the premise that foreign law is designated by conflict rules and (that)it has been beproved. However, it should be one of the possible results that conflict rules designated foreignlaw as it may designated ex Fori. It involves the theory other than the application of foreignlaw to explain that conflict rules will definitely designated foreign law. Therefore, law choicetheory, namely, how to design conflict rules should not be included in the theory of theapplication of foreign law. And it is also different from proof of foreign law which is relatedwhen foreign law is designated. As a result, law choice theory,namely, how to design conflictrules is abnormal in the process of the application of foreign law. Before it is applied toforeign-related civil and commercial disputes, foreign law should be theoretically defined inlegislation why it should be applied and how it should be applied because different answermay lead to different solution. Although how foreign law should be applied is a technicalproblem, it should be solved by answering why it should be applied. And it involves thediscussion on why foreign law should be applied by answering basic questions such as,whatis foreign law, what is the category of foreign law and what is the difference between theapplication of foreign law and application of domestic law. After answering these basicquestions, my dissertation focuses on answering an old topic: why foreign law should beapplied. My dissertation points out the disadvantage of the existed theory is that it lacksconcerning the real-life process in juridical practice because it is based on purelytheoretical deduction.The reason why foreign law is applied in a foreign country and thus has extraterritorial effect is that it is designated by the conflict rules of ex Fori whether it isregarded as a fact or as a law. On the one hand, it comes to the necessity of application offoreign law by answering why lawmakers of ex Fori set conflict rules to designate foreign law.On the other hand, it comes to the legitimacy of the application of foreign law by answeringwhy lawmakers of ex Fori can set conflict rules to designate foreign law. And my dissertationanswers why foreign law should be applied through the two aspects above. As to the firstaspect, the necessity of application of foreign law, many scholars answer from differentperspectives such as for the necessity of foreign policy,for the need of equal and reciprocalexchange, for the interest of citizens, for the recognition and execution of judgment, for theuniformity of judgment, for the fulfillment of a case justness., for the welfare of the wholeworld. My dissertation confirms that the viewpoints above is reasonable in analyzing thenecessity of application of foreign law and argues that fairness is top priority when foreignlaw is applied to the judgment of foreign-related civil and commercial dispute.Likewise thetop priority should be given to the application of foreign law to fairly settle foreign-relatedcivil and commercial dispute on the basis of respecting the sovereignty and the theory andprocess of lawsuit should be designed under the principle that fairness is top priority. As tothe second aspect, the legitimacy of the application of foreign law, many scholars answerfrom different perspectives. Among them, some scholars deny the application of foreign lawand there does not exist extraterritorial effect, while some other scholars argue that domesticlaw has extraterritorial effect. Nevertheless, the theory above cannot perfectly answer whyforeign law has extraterritorial effect because of its weak points. Under the circumstances ofsovereign independence and equality among nations, an independent country, one member ofnon-international organization, has no right to require a foreign country to apply its domesticlaw or request that a foreign country’s law be applicable in its country. However, it is naturalin juridical practice for an independent sovereignty to borrow foreign laws to its domesticcase because any legislation body can borrow the advanced experience of foreign legislationto serve for its own legislation. The key is why the borrowed foreign law can be the criterionof judge cases. In other words, foreign law is one of the sources of effect for ex Fori. Mydissertation argues that the effect of foreign law is from the injection of conflict rules bylawmakers in ex Fori. Furthermore, the behavior of injection can have law effect only afterthe foreign law is not conflict with international public order. This is called injection theory.Therefore foreign law which is under the ascertaining by the court belongs to the fact to be proved And after ascertaining it will be injected with law effect by lawmakers of ex Fori andshifts to law and will be the ruler in judging foreign-related civil and commercial dispute if itis not violating the international public order. This is called the theory of stages onnature of foreign law。As for the failure of the ascertaining of foreign law, my dissertationargues that the best choice is suitable to its country rather than efficiency priority or fairnesspriority. As for the remedy of the error of the application of foreign law, the article holds,based on investigation, that appeal of the remedy of the error of the foreign law’s is applicablein most countries of the world. The difference is whether it can be appealed to the highestcourt. According to the theory of stages on nature of foreign law, the foreign law thatis finally applied by the judicial authority is law, therefore, the appeal to the highest court istheoretically reasonable and the key lies in the will of the individual country. The ascertainingof the content of foreign law belongs to finding of the fact, whose right should be fulfilled bythe judge whereas the right to explain should be certainly fulfilled by the court, because theforeign law belongs to law and according to “miura novit curia” or “judicial notice”. Thenecessity of the right application of the foreign law to solve the foreign-related civil andcommercial disputes determines that the value aim of application of the foreign law is thejustice of the substantial law. And the justice of the substantial law should be shifted to theapplication and the right application of the foreign law designated by conflict rulesaccordingly. The general idea is that the the public order of the court and the “directlyapplicable law” are combined to form the limited jurisdiction to seek the basic interest of thecountry and the society. Accordingly, the system of evasion of law is transferred fromprotecting the public order at home to protecting the legal profit of the opposing party or thethird party with its function being changed from restoring or curbing Unjustified benefits tocurbing the improper harm of the opposing party or the third party. Also, a system ofdistinguishing should be set up to eliminate false foreign cases, i.e. as for the case whosefactors are all applicable to domestic law when the litigant tries to evade the domestic las bychanging the connecting factors should all be identified as domestic cases and be deal withaccordingly. Because whether to maintain the system of evasion is meaningful when it isbased on a case which is really foreign-related. The real foreign cases is not limited by theevasion of the domestic or foreign compulsory regulations, rather, For the contract behavior islimited to avoid effective compulsory norms.The article indicates that based on comparison the nationality and residence remain the two principles of personal law of the world and habitual residence has not been the alternative.Therefore, although the doctrine of renvoi is not perfect, it is still irreplaceable in the field ofthe personal law. So it’s function should be limited within personal law. At the end of article,an analysis is made on the theory and system of the application of foreign law and constructor reconstruct the previous relevant theory and system.The paper consists of seven chapters except the introduction and conclusion.Chapter one, is the definition of foreign law and its application. This paper defines theforeign law and its difference with similar concepts, the application of foreign law, andcompares the difference between foreign law and the application of domestic law, has beenclear about the research object of this article.Chapter two, the theoretical basis of the application of foreign law and orientate of value.The application of foreign law according to common theory in this paper is divided into twoaspects, namely the necessity and legitimacy. As to the necessity of the application of foreignlaw, after basing on the analysis of the existing theories, under the condition of the principleof respect for state sovereignty, to apply foreign law from the rule of conflicts should be thefirst need of fair to solve foreign-related civil and commercial disputes which should to be thecore to design the theory and the system of litigation.First of all,it should follows theprinciple of national sovereignty maintenance, secondly, on the premise of respect thesovereignty, the pursuit of a just settlement in the case. Finally, it should also be the pursuit offoreign recognition and enforcement of judgments, equality and reciprocity in internationalcivil and commercial exchanges, and so on other goals. As to the legitimacy of the applicationof foreign law, after basing on the analysis of the existing theories, this paper thinks that inorder to achieve this value pursuit to referee fairly foreign-related civil and commercialdisputes in the foreign-related civil lawsuit, the lawmakers of the forum unilaterally,temporary borrow freely the content of foreign law designated by the rule of conflictsrules,and injecting force of law to referee foreign-related civil and commercial disputes, atthe same time to the public behavior to guide. This is to borrow, injection theory. The valueorientation of the foreign law applicable shall be based on substantive justice, but should beconverted to foreign law applicable conflict rules quoted as soon as possible.Chapter three deals with the quality of foreign law. By theoretical analysis andcomparison of the traditional theory of legal nature of foreign law,factual nature of foreignlaw or hybrid nature of foreign,the theory of stages on nature of foreign law is put forward in this paper.Chapter four deals with the ascertainment of foreign law. A theoretical analysis andcomparison is made to identify models of the application of rules conflicts,the models of theascertainment of foreign law, the ways of the ascertainment of foreign law, the confirmationof foreign law and the international cooperation of the ascertainment of foreign law. Thepaper proposes suggestions according to some theories from this paper. The court reserves theright to confirm and explain the content of foreign law.Chapter five deals with the failure of the ascertaining of foreign law and the remedy ofthe error of the application of foreign law. As for the failure of the ascertaining of foreign law,my dissertation argues that the best choice is suitable to its country rather than efficiencypriority or fairness priority. As for the remedy of the error of the application of foreign law,my dissertation argues that the appeal of the remedy of the error of the foreign law’s isapplicable.The sixth chapter deals with the limitation of application of foreign law. This paperdeals with the traditional system of restrictions, such as public order terms, evasion of law,renvoi was analyzed, and discusses some frontier problems involved by "directly applicablelaw" combining the public order. And this paper rules out the restrictions on the applicablefunction foreign law on identification system and the ascertaining system of foreign law, atthe same time also discusses on the fit relationship of public order clause,"directly applicablelaw", evasion of law.The seventh chapter deals with the theoretical construction and the system design of therelevant the application foreign law in China and. As the final stage, this chapter first analyzesthe theory of application of foreign law in our country, legislation and judicial practice, andaccording to analysis the problem from the above analysis, makes the construction orremodeling by the theory put forward by this paper...