On Foreign Law To Identify Not

In the case of foreign-related civil and commercial proceedings, in accordance with the conflict of law should apply a foreign law, the related contents of foreign law could not be ascertained after the court or the parties using certain methods within a certain period of time. "The failure of ascertaining foreign law" is a body of rules in which the standards for this kind of situation and the alternative solution for that situation are both included. In itself, it is a part of "Ascertainment of foreign law", which is different from the results of the failure in ascertaining foreign law, is also different from the rules dealing with foreign law loopholes and the rules dealing with the mistakes in ascertaining or interpreting foreign law. "Ascertainment of foreign law" is the premise for the court applying foreign law in trial. In absence of it, "Extraterritorial effect of law" will exist in name only; Private International Law will also lost this basic standpoint. Therefore, "Ascertainment of foreign law" is one of the most important problems in Private International Law. Meanwhile, in the many aspects of "Ascertainment of foreign law", "The failure of ascertaining foreign law" plays a key role. Definition and status of "The failure of ascertaining foreign law" are the main content of the first part.The second part makes specific research on the determination of "The failure of ascertaining foreign law", which includes determining subject and determining standards two areas. The court should be the determining subject, mainly based on the considerations of Judicial Sovereignty maintenance, law loopholes determination, responsibilities distribution and methods of "Ascertainment of foreign law", and the confirmation of foreign law. Determining standards includes the period, the responsibilities distribution and the methods of "Ascertainment of foreign law". Firstly, "The failure of ascertaining foreign law" must be determined after a certain period, or it will cause the waste of time and litigation resources. Secondly, "The failure of ascertaining foreign law" must be determined if the responsibility subjects can not ascertain the foreign law finally. Thirdly, the methods of "Ascertainment of foreign law" are also one of the standards.The third part weighs the pros and cons of some countries' legislation and practice, in order to find out the solutions for "The failure of ascertaining foreign law". From the practice of the countries, there are mainly six solutions. (a) The local law presumed to be applied. (b) The foreign law is substituted by the local law. (c) The parties' claims or defenses will be rejected. (d) The law will be applied which is similar with the law ought to be applied. (e) The law guided by other Connecting Point in the Legal Relations will be applied. (f) General Doctrine will be applied.The fourth part through analysis on the status of "The failure of ascertaining foreign law" rules in our legislation and judicial practice, to raise the improved vision. Related rules in our legislation are rough relatively, which cause the confusion in our judicial practice. The improvement of "The failure of ascertaining foreign law" rules is imminent. Firstly, the principle of Justice and Efficiency Dialectical Unity should be reflected in determining standards of "The failure of ascertaining foreign law". Specifically, based on the actual situation of our foreign-related litigation practice, the period, the responsibilities distribution and the methods of "Ascertainment of foreign law" should be all clearly defined. Secondly, the principle of the Most Significant Relationship should be reflected in the solutions for "The failure of ascertaining foreign law". Specifically, the law of another country should be applied in which there is stronger significant relationship with the case than China. If not, or there are not relevant provisions in its legislation, China laws can be applied.