On The Judicial Practice Relating To The System Of Foreign Law Proof In Our Country

The system of foreign law proof is an important system of private international law, its effect of judicial application is directly related to the quality of foreign-related civil and commercial trial. The system also be clearly defined in our country’s 2010 "The Law of the Application of Law for Foreign-related Civil Relations", its judicial application is the theme of this research, specific from the following discussion of four aspects:The first part of this paper discussed the status of judicial application in China about the system of foreign law proof. In the judicial practice of our country, the responsibility of foreign law proof exist three cases, which includes the judge responsible, the party responsible and the judge with the party share the responsibility. The methods of foreign law proof mainly includes provided by the party, provided by the Chinese and foreign legal experts, the Chinese embassy in foreign or foreign embassy in China and the provisions of the international treaty which entered into force in China and so on. Among them, the approach of the parties to provide in the use of time, the court often respectively according to the contents of the foreign law by the parties have no objection to ascertain the foreign law for further identification. In the foreign law cannot be ascertained, the judicial practice shall be directly apply the law in China to the sentence.The second part has carried on the analysis to the problem of ascertainment of foreign law system exists in the judicial application of our country. In the judicial practice of our country, there often exist the court have no negative responsibility of proving foreign law while active instead of the party to find out, or the court should bear the responsibility of proving foreign law but fails to fulfill its responsibilities, so there is the problem that the court’s understanding of the allocation of the burden of proof of foreign law is not clear. In addition, the parties did not provide the foreign law while the court usually don’t urge and assist, or the court rash identified evidence provided by the party do not have proof of effectiveness, the court failed to fulfill the reasonable efforts to identify the recognition of foreign law cannot be ascertained, These show that the court in the recognition of foreign law could not be identified is not carefully and diligently.The third part discussed the reasons which causes the problem of ascertainment of foreign law system exists in the judicial application of our country. From the legislative perspective is mainly because the nature of the foreign law is the fact or the legal is not clearly defined in the relevant legislation, and the allocation of responsibility for the ascertainment of foreign law is by the judge or the party is not clear enough, as well as the provisions of the foreign law can’t be identified are replaced by the the law of the court is too absolutely. From the judicial practice level is mainly because the use of methods of ascertainment of foreign law is inadequate, commonly used methods of ascertaining foreign law is only provided by the party and legal experts, at the same time, because of the law of various countries is complicated that make the court exists practical difficulties on the ascertainment of foreign law problems, and by the tendency of interest driven, there have the preference of apply the court law in practice.The fourth part put forward some suggestions to solve the problem of the ascertainment of foreign law system exists in the judicial application of our country. In legislation, we should further improve the relevant provisions of foreign law system, mainly for make clear the allocation of the burden of proof of foreign law according to different nature of the cases, to broaden apply the other connection point and determine the law, apple the law which is similar to the foreign law should be applied to and the general principles of law after unable to prove the foreign law and so on. In judicial practice, it should be more effective to use a variety of methods of proving foreign law, especially making full use of network, the international treaty and other methods, the court and the scientific research institutes should be carried out in cooperation on the issue of ascertainment of foreign law, and establish the ascertainment of foreign law research base, as well as clear a judicial cognizance standard that the judge should take reasonable efforts to fulfill the main obligation of diligence and then identify the foreign law can not be ascertainmented.