The Empirical Study Of Ascertainment And Application Of Foreign Law

As the basic system of private international law,ascertainment of extraterritorial law plays an important role in achieving the goal of application of the governing law which is directed by the conflict rules.At present,the research on the ascertaining the extraterritorial law are mostly about theoretical analysis.Especially since law of the application of law for foreign-related civil relations of the People’s Republic of China has been promulgated and come into force,the judicial practice of ascertaining the extraterritorial law in China has not been paid enough attention to and still lacked of sufficient data statistics and analysis.Therefore,the first part of the thesis is the empirical research on operational effectiveness of ascertainment of extraterritorial law in foreign-related civil and commercial trials,and obtains preliminary statistics according to the relevant collected data to explore the practice of ascertaining and applying the extraterritorial law in China courts from the perspective of "ought to be" in law making and "actually be" in law enforcement.The second part of the thesis mainly draws the conclusion that some problems in the operation of the system of ascertainment of extraterritorial law in China: firstly,the distribution of the responsibility of ascertainment of extraterritorial law isunbalanced.It is difficult to distinguish between the ascertainment of foreign law and the provision of foreign law.In addition,there is a practice of intervening the party’s autonomy to avoid bearing the responsibility of ascertainment and determining the invalidity of party autonomy while abusing the principle of the most significant relationship.Secondly,there are a large number of cases in which the parties are unable to submit any opinions on the extraterritorial law.Most of the courts and the parties hope to find out the extraterritorial law by legal experts.In addition,the standard of disabling to ascertain foreign laws is not clear,most courts have not given sufficient reasons in the trial.And the exercise of discretion is too flexible and lack of reasonable restrictions.The third part of the thesis seeks for the corresponding solutions from the following perspectives: First of all,we should treat the distribution of the responsibility of ascertaining differently according to the conflict rules,the types of cases and the difficulty of ascertaining.secondly,we should broaden the path of ascertaining the law by improving the capacity and quality of law supplies,and making rules for the legal experts to participate in the litigation.Finally,the criteria can be clarified by strengthening the argumentation of documents and attaching importance to sufficient cross-examination.