Study On The Ways Of Ascertaining Foreign Laws In China

System of ascertaining foreign laws includes many important contents,such as reference body,the burden of proofing,and the way of ascertainment.The function of reference body and the distribution of the responsibility is to clarify "who" to ascertain foreign law,while the function of ways of ascertainment is to stipulate "how" to ascertain foreign law.In foreign civil and commercial cases,the way of ascertainment plays an important role in the efficient inquiry and the correct application of foreign laws,which even affects the direction of judgment results.One of the most difficult problems in China’s foreign-related civil and commercial judicial trials is how to ascertain foreign laws.A set of complete,efficient and convenient ways of ascertaining foreign laws can help the parties and judges to find out foreign laws efficiently.However,the ways of ascertaining foreign laws in China are not perfect in legislation and also not smooth going in practice at this stage.This paper intends to analyze the legislative and judicial aspects of the process of ascertaining foreign laws,and put forward some targeted suggestions through the combination of practice and theory.It is expected to help improve the system of ascertaining foreign laws in China.This paper is divided into four parts except the introduction and abstract.The first part is about the value of the ways of ascertaining foreign laws and the development of our country’s provisions.As an important part of the system of ascertainment of foreign law,the way of ascertainment is of great value.From article 193 of < Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China> in 1988,to Article 51 of <Summary of the Second National Maritime Trial Conference on Foreign Business> in 2005 and Article 17 of the < Interpretation of Several Issues concerning the Application of the Law of the People’s Republic of China on the Law Applicable to Civil Relations Concerning Foreign Affairs(1)> in 2012,China’s provisions on the way to ascertain are also changing with the development of the times.In the second part,there are defects in the relevant provisions of the way of ascertaining foreign law of China.Strictly speaking,there has been no clear and complete legal provisions on the way of ascertaining at the legislative level in China,and the relevant provisions on the way of ascertaining are scattered in various judicial interpretations and meeting minutes.As the first separate law to stipulate the content of the application of foreign-related civil law,<The Law of the People’s Republic of China on the Application of Foreign-related Civil Relations> lacks provisions on the way of ascertaining foreign law.Moreover,the relevant provisions in judicial interpretation are not strict and logical,so the relevant provisions of the way of ascertaining foreign laws still need to be improved and modified.The third part is about the judicial dilemma of the way of ascertaining foreign laws and its causes.Through the analysis of 80 case judgments and other empirical evidence,the author concludes the dilemmas:In practice,the way of ascertaining the foreign law of our country is faced with the difficulty of providing the foreign law because of the limitation of the parties’ knowledge,economic conditions and ascertaining technology;Although the legal expert approach is widely used,it lacks perfect rules and regulations,which makes it difficult for consulates and judicial assistance approaches to apply due to cumbersome procedures and low efficiency;Without multiple ways of ascertainment the judge identifies it impossible to ascertain casually.All of these are affecting the effective operation of foreign law ascertainment in China,and are also one of the important factors that lead to the fact that most of the foreign-related civil and commercial cases in China can not be ascertained.In the last part,it puts forward some suggestions to improve the way of ascertaining foreign laws in China.In view of the problems existing in the ways of ascertaining foreign laws in China,this paper puts forward solutions as making clear the ways of identifying and making unified provisions,setting the content standards and reasonable time limit for providing foreign laws,improving the qualifications,rights and responsibilities of experts,and adding efficient and practical ways of ascertainment,which makes the way of ascertaining foreign laws play its due role,and promote the equal application of domestic and foreign laws in foreign civil and commercial cases.