To Discuss The Rules' Improvement In Proof Of Foreign Law In China

An obvious difference of foreign-related cases contrasted to traditional Chinese cases is foreign factors involved. Thus the judgers should not only consider factors like the nationality of the parties, the place where the dispute occurred, where the subject matter, but also factors like law of which country should be applied, this will involve the question of proof of foreign law. As an important matter in private international law, proof of foreign law deserves to be discussed in theory as well as on practice.Foreign-related cases involved in Chinese court and arbitration agency is increasing recent years. Although the judicial interpretation of the Supreme Court filled the blank of legislation on some extent and cited some ways of proof of foreign law, there's still a series of problems occurred because of the incomplete on both legislation and judicature.The cognition of the quality of foreign law decides where the burden of proof goes. But there is no rule on this issue on our legislation which results in the ambiguity of the burden of proof. Under Chinese judicial system the court and the arbitration agency have the initiative and they often tend to transfer the burden of proof to the parties, at the same time the parties can't behavior in light of detail law which bring to the lack of guide and they can hardly maintain their rights. If foreign law could be confirmed as a kind of special fact and proof of burden of parties could also be confirmed on legislation the law could guide the judicial practice clearly. Whether the foreign law provided by the court or by parties, it could be unclearly and contestable. Problems like select and explain foreign law in a wrong way often occurred because the lack of reasonable system to explain foreign law. The judicial institution and the parties both tend to seek help from expert witness, but our expert witness system is immature and many problems existed, thus the expert witness isn't the last bumper. clarifying the relation between proof of foreign law and characterization, setting authentication system of expert and standardization the expert witness system are all important for proof of foreign law. Different nation takes different measure when a foreign law couldn't be proofed appropriate, as to Chinese law, it rules Chinese law adopted. General legal principles match the original idea of adopting of foreign law better than internal law as the later one embody its disadvantage during practice. By referring the research achievements both domestic and worldwide and combining inner apperception the author analyses the situation of proof of foreign law in Chinese through citing typical cases, this analysis takes the concept of proof of foreign law and oversea practice as the beginning. The author also brings forward some suggestions to discuss proof of foreign law in Chinese both on legislation and judicature.