A Comparative Study On Proving Foreign Law Through Expert Investigation

It is an ultimate goal pursued by both civil and commercial law scholars and international private law scholars to confirm and ascertain the content of foreign law and improve settlement of foreign civil and commercial cases through a reasonable way.With a deep and close cooperation and communication in the field of international private law in recent years,civil law and common law countries have begun to reform their own system concerning proof of foreign law by drawing lessons from each other as if by prior agreement.As a form of evidence,expert opinions,combining with the rules of evidence,have been widely used in traditional civil action,and have a distinct advantage in identification and ascertainment of foreign law.The position of Expert Opinion as evidence forms in the two legal systems is different from the nature of experts.In civil law system,Expert Opinion is mostly presented to court as witness testimony;in common law system,Expert Opinion is considered as neutral conclusion,and the expert who gives opinion does not have to bear responsibility to the party that employed him.“Proving Foreign Law through Expert Investigation” is not the practice or judicial tradition of certain country or a legal system,because Expert Investigation has some inherent advantages in the field of civil litigation.In civil law countries,both parties in the action cannot fight alone owing to antagonism of civil procedure,in other words,each party cannot win the court debate without assistant of certain professionals.Exception of Rules of Evidence and Rule of Hearsay evidence show that participant of expert is indispensable in the civil field.Rules of expert testimony should be regulated through Cross Examination to ensure the authenticity of expert opinions.In common law countries,“jura novit curia” theory is deep-rooted,however,this principle is also being deeply shocked by judicial problems.On one hand,these judicial problems are caused by diversity and complexity of foreign law;on the other hand,these judicial problems cannot be solved because there is a misunderstanding of “jura novit curia”,this principle only requires cognition of domestic law,but it has no axiomatic and practical guiding role in proof of foreign laws.With deepening international exchanges,an efficient and authoritative way to help judges solve problem of proving foreign laws is required.As "think tank" of judges,professional and authoritative foreign law experts are playing a more and more important role in proof of foreign law,and “Proving Foreign Law through Expert Investigation” has been "transplanted" to many countries as successful experience.From the perspective of comparative law,I will take the characterization of foreign law experts in different jurisdictions as a basis,and compare legislation and practice on Expert of several countries in order to dig into how to prove foreign law through expert investigation,meanwhile I will discuss some typical cases solved by “Proving Foreign Law through Expert Investigation” in our country in recent years,and suggest that we should establish our own system that complies with China's Civil Procedure and practice development while learning experiences from some foreign countries.