Research On The Identification Of Extraterritorial Law In My Country's Foreign-related Civil And Commercial Trials

Since the implementation of the<Law of the People’s Republic of China on the Application of Foreign-Related Civil Relations Law>and its judicial interpretation,the system of ascertaining the foreign law in China has been formally determined by legislation,but no positive progress has been made.The legislation is mostly abstract and lack of specific practical and operable,which makes it difficult for judges to comply in judicial practice.There are few cases of successful identification and application of foreign laws,so the parties ’autonomy cannot be achieved,and the rights and interests are difficult to be guaranteed.With the development of economic globalization and the implementation of the "Belt and Road" initiative,exchanges and cooperation between countries have deepened,and foreign-related civil and commercial cases have increased year by year and are of various types.In the trial of these cases,problems of ascertainment of foreign law are often encountered.Due to the slow development of China’s system of ascertaining foreign law and the fact that foreign law cannot often be ascertained,the problem of ascertainment of foreign law has become a bottleneck that restricts the effectiveness of China’s foreign-related trials.Therefore,we need to further improve the system of ascertaining foreign law in order to effectively solve the difficult problem of ascertaining foreign law in judicial practice.This article is divided into four parts,the main contents are summarized as follows:The first part mainly investigates the judicial practice,and finds that there are the following problems:the nature of the foreign law is not yet clear,and the foreign law is regarded as fact in judicial practice;the question of whether the auxiliary legal source of the foreign law is applicable has yet to be resolved;There are no supporting rules for various approaches for ascertainment;the determination that foreign laws cannot be ascertained is too hasty.Then analyze and discuss the causes of each problem.The second part is mainly to analyze the theoretical basis of the foreign law ascertainment,combined with the legislation and practice of the major states,and found that the traditional fact theory and its corresponding party certification model and legal theory and its corresponding judge ascertainment model have gradually changed and started to learn from each other.The compromise and cooperative ascertainment model has emerged and gradually became a consensus.The third part is mainly to combine the various problems found in the first part,to investigate the implementation and development of the corresponding systems in major countries.It is divided into two parts.One is related supporting rules for the approaches for ascertainment,and the other is identification rules and restrictions of failure to ascertain the foreign law.It is also summarizing its pros and cons.The fourth part is mainly to combine the theoretical basis and comparative research,put forward relevant improvement suggestions,in order to be able to efficiently solve the problem of f ascertaining foreign law in foreign-related civil and commercial cases,further optimize the legal business environment of our country,and enhance the international impact of our judicial Power and credibility.