Research On Reconstruction On Proof Of Foreign Law System In Foreign Civil And Commercial Jurisdiction Of China

Proof of foreign law is not only a basic theoretical problem of privateinternational law, but also the key problem of proving and applying the foreignlaw in foreign civil and commercial judicial practice. In China, the application ofproof of foreign law appeared disordered in the foreign judicial practice becausethe relevant legislation is not practical. At present, the theoretical research andsystem design on proof of foreign law of scholars in our country is mainly basedon the way of traditional legal analysis. In recent years, the method of economicsof the law in the field of international law is widely used, study the system ofproof of foreign law through the analysis tools of the economics of the law,through the innovation of research method to enrich the theory of proof offoreign law in a new perspective, and provide effective guidance for foreign civiland commercial judicial practice in China.Firstly, expounded the status and importance of the system of proof offoreign law in private international law through three aspects of legislative,judicial and construction of legal order; then expounded the present situation oflegislation and judicature of the system of proof of foreign law in our country,discussed the necessity of reconstructing the system of proof of foreign law inour country by analyzing the deficiencies and main problems in the field oflegislation and judicature.Secondly, expounded the theory of private international law from the viewof state standard, individual standard to social standard, and choosing the socialstandard as a theoretical perspective of this research; through the analysis of therelationship on law value evaluation standard of the value of justice andefficiency, provided the theoretical basis for the reconstruction of the system ofproof of foreign law in our country; through the elaboration of the legislation andjudicature of the system of proof of foreign law in the main countries of thecontinental law system and Anglo-American law system, analyzing the variousfactors which influence the system of proof of foreign law, and the relationshipbetween the various factors, provided empirical evidence for the reconstructionof the system of proof of foreign law in our country.Finally, analyzed the nature of foreign law, ascertain that foreign law has legal attribute, and through the analysis of component of the system of proof offoreign law, ascertain the specific path on reconstruction of the system; thendesigned five aspects on the subject of proof of foreign law, the approach ofproof of foreign law, the interpretation and ascertainment of foreign law, thehanding method when the foreign law can’t be ascertained, the legal remedy onwrongly ascertain of foreign law. The innovation of this paper lies in the use ofgame theory in economics of law to research on the subject of the system ofproof of foreign law, proposed the theory of "the subject of two side structure" ofproof of foreign law.