我国域外法查明制度之反思与重构

Thought and Reconstruction of Ascertainment Systems in Our Country's Out Territory Law

域外法查明制度是国际私法中理论和实务并重的基本制度,以我国域外法查明的立法与实践为基础,提出存在立法简单、实践不统一的问题,并进一步提出解决问题的思路,理论构建上域外法应当视为"法律",实践操作上应确立以法院依职权查明为主、当事人提供域外法为必要的制度,并规定域外法查明的"合理期限",赋予法院根据域外法查明难度申请帮助的权利;同时立法上完善域外法确认、域外法查明不能的补救等方面规定。

The ascertainment system of out territory law is the basic system of international private law which lay equal stress on both theory and practice. Based on the legislation and out tern＇tory law ascertainment of our country, this essay is to raise some problems as simple legislation and disunited practice and also put forward some to these problems. Theoretically out territory law shoud be regarded as ＂law＂, wheras practically some necessay systems should be built by which the main duty of the court should be to make things clear and the out territory law should be provided by the litigant. ＂Rational period＂ should be settled and the right to apply for help should be given to the court. Meanwhile, some regulations should be perfected by legislation abojt the aifi- emation of out territary law and the remedy if it cannot be used.