On The Application And Enlightenment Of Chinese Law In The Judgment Of American Courts

In the process of the modernization of the rule of law in China,the extraterritorial application of Chinese law is often ignored.However,with the improvement of Chinese comprehensive strength,the importance of extraterritorial application of domestic laws in international exchanges is increasingly prominent.This thesis takes the application of Chinese law by American courts as an example to explore the prospect and direction of extraterritorial application of Chinese law.As far as the applicable object is concerned,the application of Chinese law by American courts is not limited to Chinese statute law,and jurisprudence can also be the subject of citation.In addition,American courts can also refer to the theories and works related to Chinese law.As far as the types of application are concerned,the application of Chinese law by American courts can be divided into three categories: the applicable law,the non-applicable law and the judicial reasoning materials.When investigating Chinese law,the investigation method of American court is relatively simple.The expert witness system is usually the most important method used by judges and parties to ascertain Chinese law.As far as the interpretation of the application of Chinese law is concerned,American judges will adopt text interpretation method or pragmatic interpretation method according to their personal preference.The Chinese government may also provide its interpretation of Chinese law to the court as an amicus curiae,but the US Supreme Court held that the interpretation was not binding.Due to the error-prone translation of Chinese law and the limited understanding of Chinese legal system by judges,American courts are prone to misinterpretation when interpreting Chinese law.In this case,the parties can resort to appeal for relief,and the appellate court will comprehensively review the application of Chinese law.American courts may refuse to apply Chinese law if it fails to be identified.Other reasons for the refusal of the US courts to apply Chinese law include: the finding that the interests embodied in Chinese law are not higher than those of other parties based on the interest analysis;the application of directly applicable law.The above-mentioned dilemma faced by Chinese law in the application of American courts are mainly due to the difficulty in applying Chinese guiding cases,the difficulty in guaranteeing the accuracy and authority of the English translation of Chinese law,and the simple method of identifying Chinese law.In order to solve the above problems,China should speed up the construction of extraterritorial applicable legal system of Chinese law,improve the Chinese guiding case system,facilitate the building of a contingent of foreign-related legal professionals,strengthen the construction of English database of Chinese law,promote the implementation of the agreement on judicial assistance in civil and commercial affairs involving foreign element and promote the implementation of the principle of reciprocity.Through these measures,the construction of the extraterritorial application system of Chinese law will be improved and itsextraterritorial influence will be expanded.