An Empirical Comparative Study On The System Of Law Identification In China

With the rapid development of global economy and the frequency of China’s international tractions, the cases involving foreign affairs accepted by the Chinese courts which should apply foreign law have been increased greatly. However, due to the lack of the comprehensive legislation of China and practical guideline on the ascertainment of foreign law, the Chinese courts adopted the trend to avoid the application of the foreign law by ignoring the agreement reached by the parties and rule of choice of law. Therefore, the performance of the Chinese courts does not match the rapid development of Chinese economy. The critical task for is how to perfect the legal system of the ascertainment of foreign law which should be effective and consistent with the international practice under the Chinese law and practice. This article will study the legal system of the ascertainment of foreign law from both ways of comparative law and empirical research and make suggestions on the legislation and practice guideline on the ascertainment of foreign law under Chinese legal system. This article includes6sections.The first section will elaborate the definition of foreign law and its scope, and further study the definition of ascertainment of foreign law and the term of "findings" and "application" of foreign law, and the importance of the legal system of the ascertainment of foreign law. The article will emphasize that the foreign law is not only the foreign country law, and the purpose of the ascertainment of foreign law is "application " but not "finding" of foreign law, in order to resolve the problems in the legal system of the ascertainment of foreign law under the Chinese law and practice.The second section will elaborate the history and main contents of the legal system of the ascertainment of foreign law under Chinese law and regulation. It will also study the current status and main problems of the legal system of the ascertainment of foreign law under Chinese law, and analyze the problem relating to the burden of proof and findings when ascertaining the foreign law. The third section will study the theory and practical problems of burden of proof relating to the ascertainment of foreign law under Chinese law from the both ways of comparative law and empirical research, especially analyze the key problems of burden of proof relating to the ascertainment of foreign law based on the statistics located from the empirical research, then will make comments on the constructive plan for the legislation of the ascertainment of foreign law under Chinese law.The fourth section will study the theory and practical problems of the means used for the ascertainment of foreign law under Chinese law from the both ways of comparative law and empirical research, especially analyze the key problems of the means used for the ascertainment of foreign law based on the statics located from the empirical research, then will make comments on the constructive plan for the legislation of the ascertainment of foreign law under Chinese law.The fifth section will study the theory and practical problems of the failure and disposal of ascertainment of foreign law under Chinese law from the both ways of comparative law and empirical research, especially analyze the key problems of the failure and disposal of the ascertainment of foreign law based on the statics located from the empirical research, then will make comments on the constructive plan for the legislation of the ascertainment of foreign law under Chinese law.The sixth section will study the theory of the wrongful application of foreign law and its remedy under Chinese law from view of comparative law, and analyze the practice of wrongful application of foreign law and its remedy under Chinese law.