Research On The Perfection Of China’s Foreign Law Ascertainment System

With the comprehensive advancement of China’s“Belt and Road" initiative and the continuous improvement of opening up,promoting trade and investment freedom,and creating a fair and stable business environment are inevitable requirements for serving the overall strategic of opening up.Against the background of opportunities and challenges,China’s trade with countries around the world is becoming more frequent,foreign-related civil and commercial disputes are increasing,and the types of cases are complex and diverse.The determination of the foreign law applicable to the trial of a case is not only the actual need for a fair case resolution,but also the concrete manifestation of respecting the freedom of contract,but the complicated legal systems and different languages of various countries have undoubtedly become the major bottlenecks and obstacles to ascertain foreign laws.Although China’s laws,judicial interpretations and related documents have provided related rules for the ascertainment of foreign laws,they are still not detailed and comprehensive enough,which has detracted from the effectiveness of the ascertain practice.Foreign law’s inability to identify and low application rates has become a judicial practice which has caused a clear tendency of domestication in China’s foreign-related judicial trials.Therefore,establishing a perfect foreign law ascertainment system is not only a fundamental follow to solve the problem of ascertainment,but also an important guarantee for providing high-quality and high-standard judicial services for foreign-related civil and commercial cases.In view of this,this article studies the improvement of China’s foreign law ascertainment system.It uses literature research,case studies,and comparative research to start from the status quo and problems of China’s foreign law ascertainment system.Based on mature theories and advanced experiences from Germany、United Kingdom、Switzerland,specific suggestions are made to improve China’s foreign law ascertainment system.This article is composed of two parts,the introduction and the content.The content is divided into four parts.The first part.Firstly,The first part expounds the basic issues of the foreign law ascertainment system,including the proposal of the foreign law ascertainment problem,the concept and characteristics of the foreign law ascertainment system,and the value of the system.First of all,in the characteristics part,it mainly comes down to the three main characteristics of the uniqueness of the foreign law ascertainment system,the uncertainty of the results of the foreign law ascertainment,and the diversified solutions when it is impossible to identify.Secondly,it analyzes the value of the foreign law ascertainment system,which is conducive to promoting the functioning of conflict norms,helping to build a harmonious international civil and commercial relationship,promoting the reasonable settlement of foreign-related civil and commercial disputes,and ensuring the integrity of foreign-related civil and commercial cases.The second part.Analyzes the current situation and existing problems of China’s foreign law ascertainment system.In terms of the status quo,it mainly expounds the three aspects of the legislative status,platform construction and judicial practice.In terms of the legislative situation,it analyzes the relevant provisions of China in the process of legislation regarding the ascertainment of foreign laws,and on this basis,summarizes the characteristics and development changes in legislation.In terms of platform construction,the introduction of a unified platform for the ascertainment of China’s extraterritorial laws was introduced.In terms of judicial practice,through typical cases,it mainly analyzes the main ascertain methods adopted by the main content of the investigation and the determination situation that the foreign law cannot be ascertained.On this basis,it summarizes the characteristics of judicial practice identified by the foreign law.In terms of existing problems,the lack of responsibility for the court’s investigation is mainly manifested in the excessive reliance on the parties to provide foreign law and the court’s assistance to determine the unclear responsibility;the Chinese and foreign legal experts mechanism is not perfect,which is reflected in the qualification of Chinese and foreign legal experts unclear conditions and unclear legal status;the lack of rules and standards for the review of foreign law,which is manifested in the imperfect review rules for the content of foreign law and the unclear proof of the theory of foreign law;the supporting regulations cannot be identified.The mechanism is not perfect,such as the supervision mechanism that the court determines cannot be identified is not perfect,and the incentive and training mechanism for the judge to find out the foreign law is not perfect.The third part.Firstly,it elaborates the provisions of the foreign law ascertainment system in the United Kingdom,Germany,and Switzerland,and on this basis sums up the theory and practical experience of various countries in legislation and practice.Secondly,it summarizes the experiences that should be used for reference,such as setting the qualifications of Chinese and foreign legal experts,strengthening the argumentation of judgment documents,and sharing the responsibility for ascertaining foreign laws.The fourth part.Explained in detail the specific suggestions for improving China’s foreign law ascertainment system.First of all,it is necessary to strengthen the court’s responsibilities for investigation,specifically including getting rid of dependence on the parties’s provision of foreign laws and setting up procedures for parties to apply for court investigations.Secondly,it is necessary to improve the ascertainment mechanism of Chinese and foreign legal experts,specifically from the aspects of setting qualifications for Chinese and foreign legal experts and clarifying the legal status of Chinese and foreign legal experts.Thirdly,it is necessary to perfect the rules and standards for reviewing foreign laws,including specifically regulating the rules for reviewing the contents of foreign laws,and strengthening the interpretation of foreign laws.Finally,the supporting mechanisms that cannot be ascertained by regulations should be improved,including the improvement of the supervision mechanism that cannot be ascertained by the court,the incentive mechanism for judges to identify foreign laws,and the training mechanism for judges to ascertain foreign laws.The innovation of this article is that it proposes to give full play to the advantages of the platform’s resource collection in the context of the official unified platform of the International Commercial Court of the Supreme People’s Court.First of all,the court should make full use of the professional advantages of the ascertain institution when making the official ascertainment,play the role of the international commercial expert committee in the ascertainment of international commercial disputes,and solve the problem of ascertainment.Secondly,it is necessary to make good use of information such as the legal case ascertainment database and the country’s legal database,legal investigation research reports,and extraterritorial legal dynamic information database that will be launched later in the platform,to play the platform’s information management and big data analysis functions,and ensure that laws are applied accurately and referees are unified.Thirdly,referring to the model of the International Commercial Expert Committee in the platform,it is proposed to establish a nationwide typed expert roster to promote the comprehensive information identified by experts through the Internet,thereby improving the transparency of expert information to reduce transaction costs and correct the imbalance of supply caused by the asymmetry of information,leads the investigation subject to entrust experts to conduct investigations to improve the effectiveness of the investigation.