The Perfection Of System Of Methods Of Ascertainment Of Foreign Law In China

The ascertainment of foreign law is an important system in private international law.In the process of ascertainment of foreign law,the use of proving methods is directly related to the findings of foreign law and the conclusions of law application.The perfection of the system constituted by the rules related to the method of ascertainment of foreign law is directly related to the perfection of the system of foreign law ascertainment.This paper combines theory with practice,and systematically studies its improvement on the basis of systematically reviewing and evaluating the system of proving methods in China.This article is divided into three parts:The first part elaborates on the factors affecting the methods of proving foreign law and the methods of proving foreign law commonly used in practice.If the foreign law is regarded as “fact”,the responsibility for the identification of foreign law shall be borne by the party and the method of identification of “fact” shall be applied,and the relevant rules of evidence shall apply accordingly;If the foreign law is regarded as “law”,the court shall,in accordance with its authority,ascertain the foreign law and shall use the method of determining the content of the law to ascertain it.In practice,the commonly used methods of foreign law identification are mainly identified by legal experts,ascertained by the foreign law identification agency and identified by the central authorities of the contracting parties in the mutual legal assistance treaty.The second part analyzes the current status of the system of foreign law identification in China and the existing problems.Our provisions on methods of identification of foreign law are scattered in judicial interpretations and bilateral mutual legal assistance treaties and are only a simple list of methods for identifying foreign law.Because there is no relevant provisions in the Conflict of Laws Act,including the specific methods and the necessary rules for the use of various methods.This makes the system in a state of absence in domestic legislation and does not match its importance.The current provisions of the proving method,“provided by the litigants” as a method of identification and other methods,lead to the logic of one of the parties to identify the burden of responsibility and at the same time a method of identification At present,there is a lack of normative requirements for the various methods of identification,and the most frequently used expert opinions lack specifications in the form and necessary content.In the absence of procedural rules,there is a lack of requirements for expert qualifications.The assistance to the treaty approach is also difficult to use in practice due to the lack of specific rules.The third part puts forward the path and specific suggestions for the improvement of the system of foreign law identification methods in China.China should adopt an open attitude to determine the method of identification of foreign law.At this stage,the third-party foreign law ascertainment agency has found that foreign law is an effective method of identification.This method has been affirmed by the regulations of the Supreme People’s Court on the establishment of international commercial court.In addition,the relevant rules of the foreign law identification method should be enacted through legislation to form a complete system of relevant rules.In the context of institutional refinement,it is necessary to specifically emphasize three aspects of the proposal: in order to avoid confusion between the identification of the responsibility and the identification of the method,the “provided by the litigants” should be deleted from the methods of identification of foreign law;formulating specific rules on expert opinions,including the procedures for entrusting experts,the requirements for expert qualifications,the content and form of expert opinions,and the applicable procedures for expert opinions;and the development of operational rules for the use of mutual legal assistance treaties.