Study On The Problems Of Failure To Ascertain The Foreign Law In China

Proof of foreign law as a fundamental rule of private international law.In foreign-related civil and commercial litigation,It is the necessary foundation and premise to correctly apply the foreign law,and it is also important system to achieve the value purpose of conflict rules.Because of the special status,it is becoming urgent that perfect the system of proof of foreign law hurry to break through shackle by the problems of failure to ascertain the foreign law.The first part of this article is to introduces the contract of carriage of goods by sea dispute about EvergreenMarine(Singapore)Pte.Ltd.,The First Insurance Co.,Ltd and Evergreen Marine Corp.Leading to the problems of the responsibility of proof of foreign law,the review of affirm and exclude foreign law materials and the identification of foreign law can't find out.The second part is to explore the core root that the problems of failure to ascertain the foreign law.The problems from the case as a guide,mainly study in-depth about the situation of the proof of foreign law liability system have set up,the rule of reviewing foreign law materials and the standard of foreign law can't find out.Discusses what they effect on the problems of failure to ascertain the foreign law when our country existing laws about the responsibility of proof of foreign law are blurry and scattered,the concept of the responsibility of proof of foreign law has not yet been built and it is also easy to confuse,the procedure of affirm and exclude foreign law materials is non-standard,the impact of traditional conflict law norm"facts theory",the standard of foreign law can't find out is ambiguous.The third part is to compare the system of proof of foreign law in representative countries of Anglo-American law system and continental law system.Analyzes the different experience and related links on that three problems about the case in British,Germany and Russia.Summarizes the characteristics which are worth learning.The fourth part based on the problems with the core source,combining with the reasonable experience of foreign and objective the facts of China.From the aspects of clarifying the responsibility of proof of foreign law and regulating the procedure of reviewing foreign law materials and following the principle when confirm foreign law can't find out,that put forward the proposal of clearing the distribution of the responsibility of proof of foreign law and the definition of concept,enacting the standard and that rule of reviewing foreign law materials which are essential,clearing the qualifications of foreign law experts,enacting the standard of foreign law can't find out which is reasonable and flexible...