An Empirical Study On The Case Of "Foreign Law Cannot Be Ascertained" In Chinese Courts

Since 2010,the promulgation of several laws and judicial interpretations provide a basis and solutions for the "foreign law cannot be ascertained " problem in foreign-related trials,the fact that foreign laws cannot be ascertained is still a bottleneck problem in the judicial practice of civil and commercial trials concerning foreign affairs.Based on the empirical analysis of 191 cases of judicial documents retrieved through public channels,this paper combs the difficulties that foreign laws cannot be ascertained in judicial practice,and probes into the causes of the difficulties.Based on the above empirical analysis conclusions,this paper puts forward targeted solutions.This paper is divided into six parts.In the first part,explaining the reasons and practical significance of choosing “foreign law cannot be ascertained” as the empirical research object and purpose,and defining the research scope and method of the article.The second part through case statistics and analysis,from the four aspects of the main body,the way,the result and the remedial measures,this paper brings out the specific problems that current foreign law cannot be ascertained.The third part discusses the reasons why foreign laws cannot be ascertained effectively in practice from two aspects of legislation and judicature,such as the lack of subject capacity,the lack of supply of ways to ascertain,thefuzzy setting of the standards for the determination of foreign laws and the lack of regulations for the determination of the fact that foreign laws cannot be ascertained,which result in the fact that foreign laws cannot be ascertained.The fourth part compares the methods of Swiss law,German law and American law in the division of ascertaining subject,establishment of ascertaining auxiliary mechanism,establishment of auxiliary materials of foreign law and the ascertainment and implementation of the fact that foreign laws cannot be ascertained,so as to provide reference for Chinese courts in ascertaining and applying foreign laws.The fifth part,through the analysis and consideration of the above cases,puts forward the perfect path to solve the problem of foreign law ascertainment,including clarifying the responsibility of the subject,improving the ability of the subject,constructing and improving the effective way of ascertainment,clarifying the scope and standard of foreign law materials,and forcing the judge to make substantive efforts to realize the goal of foreign law ascertainment by restricting the judge’s authority of foreign law ascertainment.The sixth part is the conclusion,summing up the full text,emphasizing that at this stage through the improvement of the identification mechanism,the improvement can not identify the status quo,and it has practical significance to solve the problem of legal application.