On The Research Of Ascertaining Foreign Law In International Private Law

As an important system of international private law,ascertaining foreign law is the premise and foundation to correctly apply the foreign law.The judicial efficiency of ascertaining foreign law directly affects the interests of the parties,influences the quality of a country's court hearing on foreign-related civil and commercial cases.To regulate ascertaining foreign law,in 2011,our country implemented the foreign-related civil relationship applicable law of the People's Republic of China(hereinafter referred to as the applicable law)to make clear a regulation of the issue,in 2013,the supreme people's court released on the applicable of foreign-related civil relationship between law applicable law of the People's Republic of China,the judicial interpretation(a)of some issues "(hereinafter referred to as the" judicial interpretation(a)")also made detailed supplementary provisions for the issue.But so far,China's ascertaining foreign law is still controversial in academic and practical circles,how to ascertain the foreign law,ascertain the responsibility allocation,ascertain the cannot be identified,and a series of problems still not been solved effectively,and influence the development of China's foreign-related civil and commercial trial.Ascertaining foreign law's purpose and significance,lies in achieving the foreign law application of judicial practice of quoting the conflict in judicial practice.Based on the the judicial status quo of the applicable law in 2011,through the empirical analysis research methods,via the analysis from the non-litigation cases of network database collected 105 judicial documents,discusses the main problems existing in the foreign-related civil and commercial trial of ascertaining foreign law in our country,to find the root cause of problems in judicial practice,then to provide some suggestions to improve the system of foreign law determine on the existing problem.Currently,there has not been much research of empirical analysis of ascertaining foreign law,so this article has a certain practical significance.This article is divided into four chapters.The first chapter discusses the basic problem of ascertaining foreign law in private international law,interprets the concept of ascertaining foreign law,introduces and assesses the responsibility allocation the solutions foreign law can't be ascertained,the general practice of the international community on relief the foreign law applicable error general practice of the international community.The second chapter discusses the legislative status quo of ascertaining foreign law in China,and analyze ascertaining foreign law system in China from a pure form of judicial interpretation to the legislation of the development process,and points out that the applicable law and the judicial interpretation(a)has been clear about the ascertain responsibility distribution system of " given priority to with the judge ascertaining,the parties to provide auxiliary".The third chapter through research from the non-litigation cases of network database collected 105 judicial documents,based on data analysis and case analysis method to interpret samples,found that judges prefer to apply Chinese law to ascertain foreign law in the judicial practice,"foreign law can't find out" is frequent case,and the the main problems in judicial practice that the parties are liable for foreign law to find out.The fourth chapter to solve the specific issues that in the judicial practice of foreign law ascertain responsibility distribution is unknown,"foreign law can't be ascertained ",to explore from perfect the possibility of ascertaining foreign law in the legislation,put forward the amendments that the ascertaining foreign law system in our country should eliminate the law ambiguity,standard "ascertain foreign law can't be ascertained" and increases the way to ascertain.