Research On The Identification System Of Foreign Laws In China

In the context of deepening globalization and positive response of countries along the belt and road to the "One Belt And One Road" initiative,China’s international economic exchanges have become increasingly frequent and the number of foreign-related civil and commercial disputes has surged.As an important system of private international law,the identification of foreign law is related to the application of applicable law and affects the rights and interests of the parties.Since2010,China has implemented <Law of the People’s Republic of China on Choice of Law for Foreign-related Civil Relationships> and < Interpretations of the Supreme People’s Court on Several Issues Concerning Application of the Law of the People’s Republic of China on Choice of Law for Foreign-Related Civil Relationships(I)>.these two legal documents systematically established the system of foreign law proofing.Combined with article 193 of the judicial interpretation in 1988 "the opinions of the several issues about carrying out the < general principles of the civil law of the People’s Republic of China >(try out)" China specified several means of proof of foreign law.Therefore,the system of proof of foreign law has rules to obey in the judicial practice.The interpretation of the supreme people’s court on some issues concerning the establishment of international commercial tribunals in 2019 further emphasizes respect for the autonomy of the parties’ will and clarifies such approaches as the provision of experts on commercial matters of the international commission.However,this system is not smooth in China’s judicial practice,which reflects many problems.This paper starts from the four aspects of system overview,existing problems,foreign experience and system improvement,and combines the case analysis to make a modest contribution to the improvement of China’s foreign law proof system.The core of the paper lies in sorting out the current norms and analyzing the judicial cases,putting forward the most prominent problems in China’s current foreign lawidentification system,and proposing to avoid the current legislation being too principled and to supplement and perfect the supporting measures in the practice of foreign law proofing.The first chapter is the overview of proofing foreign law.This part firstly expounds the concept,responsibility and object of foreign law ascertainment and the significance of foreign law ascertainment.The second chapter analyzes the present situation and the existing problems of foreign law identification system in China from the perspectives of legislation and judicature.This part firstly sorts out the development course of foreign law ascertainment system in China,and analyzes the legislative and judicial status of foreign law ascertainment system in China.The legislative provisions are too principled and lack of operability,which are mainly manifested as unclear division of the main body’s responsibilities,unclear procedural provisions of the way of identification,and unascertainable identification standards.Judicial practice is chaotic and falls into various difficulties,which are mainly manifested as insufficient application of ascertaining ways,different standards for ascertaining foreign law materials and lack of supervision in ascertaining process.The third chapter is the comparative study of foreign law identification system.This part studies the legislative provisions and judicial practices of foreign laws in Germany,France,Britain and the United States and draws on various experiences.The fourth chapter is based on the existing problems mentioned above.In terms of legislation,on the basis of existing provisions,we should first clarify the legal nature of foreign laws and refine the division of responsibilities.Secondly,the procedural provisions of identification should be supplemented,so that there are laws to be followed in the process of identification.Finally,improving the unascertained standards of recognition can limit the court to the unascertained abuse.In view of the judicial dilemma,first of all,we can take different measures to make full use of the channels of identification by simplifying the links to reuse the channels of identification by the central authorities and diplomatic missions.We should take the advantages of identificationby expert institutions and pay attention to the role of the Internet and auxiliary law sources.Second,foreign law materials shall be identified from the two aspects of formal standards and substantive standards,and the auxiliary role of guiding cases shall be played to unify the identification standards of foreign law materials.At the last,we should supervise the process of foreign law identification from the aspects of standardizing the writing of judgment documents,reviewing and strengthening the internal and social supervision of the court by the team of judges and experts.