Study Of Foreign Law System

The birth of private international law provides a theoretical basis for theapplication of foreign law in domestic state. Since in practice we need toascertain the content of foreign law before applying it, a complete system onthe proof of foreign law is required for the smooth development of privateinternational law. Although the proof of foreign law is one of the fundamentalprinciples in private international law, the judges, in most cases, prefer toapply domestic law because it's difficult and complicated to be fully aware ofthe foreign law. For a long term, this system has only received scant attentionand experienced incomplete development. In my paper I will do a study onthe proof of foreign law in four parts, both in the theoretical way and practicalway. Plus, I will also present some recommendations on legislation of theproof of foreign law in China.In partâ… , I will discuss some preliminary issues on the ascertainment offoreign law. By analyzing the theories of "application of foreign law" which isan essential issue of private international law, I will elaborate that differenttheories on the applicatior. of foreign law leads to different identification onthe nature of foreign law: fact or law. Besides, I also did research on thecontent and nature of this system, pointing out that two aspects are involved inthe system and they possess, respectively, the procedural nature andsubstantial nature which are the ascertainment and the application of theforeign law.In partâ…¡, I will mainly discuss the problems we may encounter whenascertaining foreign law. Starting over with the entity and approach of theforeign law ascertainment, referring to different ways to study it in somecountries and the current worldwide trend on the two issues, we make theconclusion that, as regard to the entity to ascertain foreign law, we need tostructure a court-led, party-centered procedure; as regard to the approach, it'snecessary to boldly refer to other countries' practice in both legal families andto contribute to our use.In partâ…¢, I will focus on solutions to the problems when applying foreign law. After the procedure of ascertaining foreign law, two situationsmay occur: 1), the content of the foreign law is confirmed and the judge willonly need to interpret the article and apply it on specific cases; 2), if thecontent of the foreign law is obscure or the foreign law does not clearly set upthe "solution" on this specific case, the judge is reliable to take some remedialmeasures. Comparing and analyzing the practice in different countries, Ifound out that the definition on the nature of foreign law and the theory ofcivil procedure in one country strongly influence the way they deal with it,and for us, we need to take our own practice into consideration and carry out aproper and effective way to make it.The current legal and judicial status of proof of foreign law in China ismy concern in partâ…£, and in this part, I will also present some advises on thispoint. In the circle of private international law study, this system has beenoverlooked for a long time. Regulations on this issue are barely blank. Relatedrules on this point appear only in the Judicial Interpretations of the SupremeCourt and they are too general to practice. This deficiency on legal rulesfinally leads to confusion in judicial practice. In this case, what we need to dois to make the rules more feasible and try to clarify every aspect of the systemso that we can make progress on current legal practice on the proof of foreignlaw.To sum up, ascertainment system of foreign law plays a basic role ininternational private law. For China to strengthen the communication andcooperation with international communities and maintain stable relationshipin international economic trade, we must put our emphasis on the constructionof private international law which is specialized in solving disputesconcerning civil and commercial foreign affairs. And to establish the perfectand rational system of the proof of foreign law is essential for thedevelopment of the private international law.