On The Investigation Of Experts In The Investigation Of Foreign Laws In Our Country

How to accurately identify and apply foreign law is a difficult problem in China's judicial practice.Legal experts often can make in-depth research on a certain foreign law and can accurately grasp the content of foreign law,so the provision of foreign law provided by legal experts has become an important way to identify foreign law.However,the existing laws and judicial interpretations in our country only provide this method in general and in principle,without any detailed and specific regulations,and they are extremely lack in operability,resulting in the judges being at a loss in judicial practice.The number of cases where foreign law is applied is very small,and most cases that should be applicable to foreign law are often judged to be unidentifiable and handled in accordance with Chinese law.To this end,this thesis will discuss the methods of experts' investigation in foreign law identification from the perspective of comparative analysis and empirical analysis,in order to solve the problems such as unclear definition of expert and expert opinion,non-standard identification procedures,the vagueness of responsibilities,non-specific content and provide legislative and judicial reference for the improvement of the expert system in our country.In terms of the definition of “expert”,because the “expert” identified in foreign law are relatively special,a strict stance on the qualifications and scope of experts should be adopted,and a certain threshold of access systems should be set.The expert opinion shall be provided in written form,and the expert opinion may be issued orally only if the parties do have objections and the court deems it necessary.The nature of expert opinion should be considered as a witness testimony.The conclusions identified by the experts must be cross-examined and reviewed before they are applied.For the cross-examination of expert opinions,it should be conducted in written supplementary opinions,which is more economic,efficient and fair than oral cross-examination.The court does not need to conduct a substantive review of the expert opinion,and it should conduct a formal review of the expert opinion on the principle of diligence.When the expert issues a wrong opinion,if in the case that the court entrusts the expert,the expert should bear the tort liability;in the case of the party's engagement,the expert liability should be based on the liability for the breach of contract,and the tort liability should be supplemented.In general,it is not appropriate to impose toostrict legal responsibilities on experts.The following suggestions are given for expert identification system.Firstly,the admission qualification of experts should be unified,and the standard of expert qualification should be stipulated.Secondly,the construction of foreign law identification agencies should be strengthened and their identification capabilities should be improved.Thirdly,the Court's review requirements for expert opinions should be clarified.Lastly,the monitoring mechanism of foreign law identification should be revised.