Study On Ascertainment And Application Of Foreign Case Law In China

In recent years,China have been brought into closer contact with common law system countries(and areas).At the same time,due to the return of Hong Kong—one of the members of the common law system,it becomes more and more difficult for us to bypass the question of whether foreign case laws can be treated as applicable laws in international civil procedure. Therefore,in order to complete our "proof of foreign law theory" and provide a more comprehensive protection for the parties involved in international civil procedure,we need to face the fact that case law is one of the dominant components of common law countries(and areas),approving the ascertainment and application of foreign case law in China(i.e., admitting the rightful status of foreign case laws in China's proof of foreign law theory) and try to discuss the above questions in following three issues.PartⅠ:Present situation of ascertainment and application of foreign case law in China. There is a tendency towards applying more and more foreign case laws in our country,while We have insurmountable difficulties both in theory and practice,requiring analysis from subjective and objective aspects.PartⅡ:Exploration in detail on how to tackle the difficulties for applying foreign case laws in China mentioned in the first part.This part provides trains of thought about how to cope with the present difficult situation in the following five steps.Firstly,we need to understand the development and operating mechanism of the foreign case law system. Secondly,we need to decode a relevant foreign case law,find out the deeply buried "Ratio decidendi" and determine its proper scope.Thirdly,discussion on how to ascertain a foreign case law(including assignment of duty,concrete methods for ascertainment).Fourthly, detailed analysis of how to apply foreign case laws.Fifthly,recommending theory of Private Interregional laws of Hong Kong to discuss how to apply Hong Kong case laws in mainland China.Sixthly,we need to use some useful experience of other countries.PartⅢ:Suggestions on how to improve our theory and stipulation on ascertaining and applying foreign case laws in China.A conclusion was reach that we need to reinterpret the present stipulation about proof of foreign law,introduce new judicial interpretation and statues,strengthen cooperation between China and common law system countries all over the world.It is necessary to draw on the experience of other countries combining with our judicial practice and establish a scientific and standardized proof of foreign law system in China.