A Judicial Empirical Study On The Identification Of Foreign Laws In My Country

The development of economic globalization has accelerated the pace of China's opening up to the outside world.Transnational civil and commercial exchanges have led to an increasing number of foreign-related civil and commercial cases.As an important system,proof of foreign law is often involved in such cases.Therefore,how to correctly apply foreign law has become an important and unavoidable problem.In 2011,Law of the People's Republic of China on the application of laws concerning foreign-related civil relations began to apply.As one of the hottest issues,proof of foreign law has attracted much attention.However,in practice,the proof system of foreign law still has many problems.For example,the assignment of main responsibility is not clear,the proof system is abstract,it is lack of practice,and it is lack of the proof standard of "unascertainable".In the first part of this paper,introduces the different theories about the proof system of foreign law in the common law system and the civil law system,including the theory of distinguishing the nature of foreign law and the theory of the identification method of foreign law.The second part,introduces the method of empirical research is used to identify a total of 267 cases of foreign law retrieved from China's judicial document network and legal letter network.The author selected 30 effective and representative cases from a random sample of 267 cases,listed and analyzed the applicable laws,reasons and legal basis of specific cases in the form of a chart.The third part lists seven legislative and judicial interpretations on foreign laws identified in China in tabular form,and makes a comparative analysis of each change to find out the characteristics and shortcomings of Chinese legislation.The fourth part analyzes the current foreign law identification system in our country in the judicial practice of the specific problems through the case analysis,combined with the empirical research data.The fifth part puts forward some Suggestions on the existing problems.It is believed that it is necessary to make it clear that the court is the responsible party for ascertaining the foreign law,and the parties should only assume the obligation to provide foreign law.Meanwhile,the appeal review mechanism should be constantly improved to form a systematic dispute handling system and establish a review and supervision system that "foreign law cannot be ascertained".That is to say,in practice,the judge should exert his subjective initiative and use all possible methods to find out t he foreign law.The judge can make the determination that the foreign law cannot proof only after exhausting all the methods.However,it is inevitable that there are still a series of problems in the design and practical application of China's foreign law proof system.If these problems are not solved,they will affect the trial quality of foreign-related cases in China,and will also bring a negative impact on China's foreign cooperation.Through the judicial empirical study of foreign laws identified in t his paper,the author hopes to draw attention to this problem,constantly improve the application of law in foreign-related cases,and contribute to China's judicial cause.