A Comparative Study On Proof Of Foreign Law System

In the trial of foreign civil and commercial cases, when a foreign law should be used as the judging law via the guidance of the regulations of the conflict of laws and the parties' consensus, the first issue concerned is who will prove the content of foreign law and how. This is the said subject, the ascertainment of foreign law or proof of foreign law.An integrated system of proof of foreign law comprises not only the distribution of the liability to prove foreign law, the methods to prove foreign law, and also the issues of the determination of foreign law's nature, the relieves for the failure of proving foreign law, etc. As a basic system of private international law, it has a vital importance for the accurate application of foreign law and the protection of related parties' legal rights and interests.However, proof of foreign law system in china is far from the perfect, it is merely prescribed in our two judicial interpretations. Due to this emptiness of legislation, different courts may have different judgments, the related legal practice is in a mess. Because the lack of maneuverability of the system, our domestic courts often exclude the. application of foreign law in an excuse of unable to prove foreign law. Henceforth, it is necessary to further consummate our system of proof of foreign law, on the basis of comparing the said system between Civil Law countries and Anglo-America countries.This dissertation discusses with three sections, six chapters. The first part, also the first chapter of this dissertation, is mainly on the discussion of the meaning, nature, function and value of proof of foreign law system. I hope to make a clear definition of this system by analysis, and point out its nature of basic system of Private International Law. Besides, it presents an introduction of proof of foreign law system in different countries' legislations.The second part is consist of three chapters, from 2 to 5. This part concentrates on the comparing about proof of foreign law system belongs to different countries. Natureof foreign law, distribution of the liability of the ascertainment of foreign law, ways to prove foreign law and the relieves for the failure to prove foreign law will be compared in this section, too. A conclusion of law nature of foreign law is made. I also dealt with the issues of rationally distributing the liability of proving foreign law, the construction of a diverse and non-limited system of ways to prove foreign law and the right application of law when come across the failure of proving foreign law.As a stay of the composition, the third part analyzes the proof of foreign law system of our nation, thus points out the holes of our legislation and the problems in our legal practice. Combining the conclusion of part 2, I would like to discuss the issue of the reconstruction of our proof of foreign law system. Wish it'll be helpful for the related legislations in China.