My Country's Foreign Law Identification Method And Its Improvement Under The "Belt And Road" Initiative

The comprehensive implementation of "the Belt and Road" Initiative has promoted economic and trade cooperation between China and countries along the route.The number of foreign-related disputes has increased year by year.The application of foreign law by judicial organs in China has also increased.The importance and urgency of ascertaining foreign law has become increasingly prominent.The method of ascertaining foreign law is an integral part of the system of proof of foreign law.It is a tool for completing the identification and application of foreign law.It is of great value to ascertain the content of foreign law and to apply it correctly.The evaluation of the value of a specific method can be examined from two aspects:justice and efficiency.From the aspect of justice,the method should help the parties and judges to find out the foreign law needed by the case,help the judges to accurately understand the content of foreign law,so as to make a right-obligation relationship between Chinese and foreign parties according to the foreign law identified.In terms of efficiency,we should consider the cost of using different methods,including the cost of time and money,the cost of reputation and the cost of credibility based on the "cost-benefit" analysis method of economics of law.At present,there are various ways to ascertain foreign law in China,which are provided by parties,by legal experts,by judicial treaties,by embassies and consulates,and by the Internet.Nevertheless,there are still some defects in the methods of ascertaining foreign law in the practice of foreign-related civil and commercial trials.These defects are reflected not only in the defects of the legal system itself,but also is the high tendency of the subject who selecting the method of ascertaining foreign law.That is,the subject pays more attention to the cost of time and money when choosing the method of proof of foreign law.But in the context of "the Belt and Road"Initiative,this practice of reducing costs in cases may increase other judicial cost,such as the cost of justice,the cost of dignity of law,the cost of reputation and the cost of credibility and so on.In addition to the consideration of cost reduction,other factors have also played a negative role in the institutional dilemma of China’s foreign law identification methods.These factors include that the parties provide foreign law restricted by their own knowledge level and ways of identification;some judges have negative attitudes towards ascertaining foreign law according to their powers;the expert opinions provided by the parties may be biased;the relatively rough legislation on expert identification and the high cost and operational obstacles faced through judicial assistance and embassy and Consulate channels.With the deepening of "the Belt and Road" Initiative,we should not only strengthen the system of ascertaining foreign law in China,strive to reduce the cost and improve the efficiency of methods of ascertaining foreign law,but also guide the judicial organs to correctly treat the problem of cost.When judges try foreign-related cases,they should establish the awareness of the cost of justice,the cost of dignity of law,and the cost of reputation and the cost of credibility,so as to improve the enthusiasm and initiative of proof of foreign laws.Therefor,the relevant departments can improve it from two aspects:improving the legislation and increasing the effectiveness and convenience of of methods of ascertaining foreign law in judicial practice.Specifically,on the one hand,we should establish an open and pluralistic system model of methods of ascertaining foreign law and improving the system of expert committees to assist in the identification at the legislative level;on the other hand,we should build more efficient and convenient methods of ascertaining foreign law in judicial practice,such as establishing foreign law database and foreign legal expert database;expand the ways of identification actively and improve the auxiliary investigation of expert members;establish a system of training and incentives for judges to ascertain foreign laws,strengthen the role of guiding cases in foreign-related civil and commercial trials and strengthen international judicial assistance of the countries along the route.