On The Perfection Of The Identification System Of Foreign Law

The proof of foreign law is a basic system in international private law.The formation of this system stems from the fact that international private law gives equal opportunities to the application of foreign laws and lex fori in civil relations with foreign factoes.The proof of foreign law is also a prerequisite for the court to correctly apply foreign law when it hears foreign-related civil cases.The correct application of foreign laws is conducive to China ’s equal application of domestic and foreign laws to ensure the true equality of the legal status of domestic and foreigners in the foreign-related civil field.Our country law and related supporting judicial interpretations have established China’s foreign law discovery system.Although the original intention of the legislation is to establish a perfect foreign law ascertainment system,so that foreign laws can be identified and correctly applied,so that foreign-related civil and commercial disputes can be reasonably resolved.However,in judicial practice,the effect of foreign law identification is not satisfactory,which shows that there are still many problems in China’s foreign law identification system.This article uses empirical analysis methods to collect and sort out 166 real cases of foreign law identified in the "China Judgments Online".Through the investigation of foreign law in China’s foreign-related civil and commercial judicial practice,the application rate of foreign law,An analysis of the reasons for the exclusion and application of foreign laws has led to two major conclusions: First,the application rate of foreign laws in judicial practice is low,and the effectiveness of foreign law investigations is not good.The second is that "foreign law cannot be identified" is an important reason for the low application rate of foreign law.In order to explore the causes of the above conclusions,this paper draws further conclusions through empirical analysis of the path of the foreign law identified by the judge in a specific case,the reasons that the foreign law cannot be identified,and the basis for the application of Chinese law,that is,the judicial practice "The foreign law cannot be ascertained",the fundamental reason lies in the limitation of our country ’s foreign law ascertainment system in legislation and the negative attitude of judges in the judicial practice to the determination of foreign law based on institutional limitations: The determination standards,such as the determination of the essence and form of foreign law and the auxiliary legal source,are missing;in practice,the court does not pay attention to the foreign law ascertainment procedure and transfers the responsibility of foreign law ascertainment,and the parties identify obstacles to the foreign law.Based on the analysis of the causality of the low application rate of foreign law in China’s judicial practice,through the comparison of outstanding foreign law identification systems and the experience of China’s courts on the successful cases of foreign law identification,the foreign law in China The identification system should be improved in terms of clarifying the responsibilities of the main body of foreign law investigation,increasing the effective supply of foreign law investigation methods,and refining the certification standards and procedures that foreign law cannot identify.