On The Identification And Application Of Foreign Jurisprudence In China's Foreign-related Civil Litigation

With the acceleration of the process of globalization, Foreign-related disputes become frequent. Foreign case often needs to be applied in the courts as substantive law when adjudicating foreign cases. In this study, by comparative jurisprudence, we have discussed the necessity and feasibility, proof and application method, problems and solutions of application of foreign case. We’ve attempted to set up rules for it in China, What makes legislation perfect, then juridical practice will be more effective and feasible。This paper is divided into three parts.Part Ⅰ mainly elaborated the concept of foreign case, its necessity and feasibility, and the Status quo of application of foreign case in China. The foreign case mentioned in this paper refers to the case in common law system. We should focus on the differences from judgment, precedent and case law. And understand the meaning of foreign case in this paper. We’ve also briefed the proof and application of foreign case in international civil litigation of China. At last, we’ve introduced of academic views on the application of foreign case. At present, China’s application of foreign case, there are four perspectives:directly applicable, select the applicable, supplement applicable and shall not apply. This article attempts to clear from the jurisprudence applicable foreign law should include foreign case. Legal sources should be determined in accordance with the laws of the foreign law. In common law countries, case is its formal legal sources; we couldn’t apply it just because case law is not our legal sources.Part Ⅱ mainly elaborated the problems in proof and application of foreign case in China international civil litigation. We’ve analyzed problems and difficulties in proof and application of foreign case from three parts, which include legislative and judicial interpretation and juridical practice.Part Ⅲ mainly elaborated the solutions for the problems above, and tried to set up rules for proof and application of foreign case in China. We could find solutions according to experiences of foreign countries. Through legal channels, improve the relevant domestic legislation. The court and parties both take the main responsibility for proof, but court has primary responsibility. The way we should proof, adopt a pragmatic approach, including legislative and judicial interpretation and any other ways. Pay attention to case law applicable to foreign case special legal reasoning, should be applicable the legal rules in case correctly. Chinese law and foreign case law should be equally treated when the foreign case could not be proof. Besides, the professionalism of judges should be improved, and we could benefit from international exchanges when proof and applying foreign case.