Research On The Legal Issues Of "the Foreign Lae Can’t Be Ascertained"

Although in recent years the foreign-related civil and commercial cases judged by China’s courts have been increasing year by year, the using of foreign laws relying on the principle of conflict law has been less and less. The main reason why judges apply the Chinese law is because of a judgment that the foreign law can’t be ascertained. According to China’s related legislation, the ascertainment obligation of the court, the arbitration organization, administration office and the party have been written in "Law of the People’s Republic of laws in civil matters involving foreign elements applicable method"(named as "Applicable method" in the following passage) issued in2010, which made it clear to apply for the Chinese law when it cannot be ascertained by the foreign laws. The introduction of "Applicable method" is a big event in China’s law history. It’s the first international private law involved with several generations of China’s international lawmakers and scholars, which has significant meanings.But in "Applicable method", there are no explicit provisions to ascertainment obligation parties such as the court about how to ascertain the foreign laws, how to judge the foreign law ascertainment and how to affirm the ascertained foreign laws offered by the parties, which leads to the out-of-control right of the judges and the abuse of China’s law. It is important to set up a set of rules used in the situation that the foreign law can’t be ascertained. The related theories of the nature of the foreign laws, the methods of ascertaining foreign law, judgment on " the foreign law can’t be ascertained" and the legal consequences of the judgment are most important theories in the rules. The author will discuss our country’s rules used in the situation that the foreign law can’t be ascertained from these aspects.No matter what form "the foreign law can’t be ascertained" is, the rules of it will depend on the nature of the foreign laws. The different judgment about whether the foreign laws are "facts" or "laws" will lead to different duties of proof, methods of ascertaining as well as the legal consequences. The "facts theory","law theory" and "compromise theory"(including the "special facts theory " and "special law theory ") are the main theories in the world. The countries insisting on different theories will use different rules as well as the legal consequences.On the issue of nature, our country judges the foreign laws as "facts" before the introduction of "Applicable method". After that, we judge the foreign laws as "special laws". The author takes China’s situation into consideration and supports the second point of view. Meanwhile, there are many inadequacies in "Applicable method". Through the research and analysis of related theories, legislation and practice on the nature of the foreign laws, the methods of ascertaining foreign law, judgment on " the foreign law can’t be ascertained" and the legal consequences of the judgment, the author make some suggestions to improve the legislation of our country. With the joint efforts of so many scholars, China will eventually explore a set of rules which suits China’s conditions when the foreign law can’t be ascertained.