我国外国法查明立法的实施问题

On Implementation of Ascertainment Legislation of Foreign Law in China

我国外国法查明立法是我国外国法查明的法律依据,它只有在我国外国法查明的司法实践中得以有效实施才能发挥其重要作用。近年来随着我国外国法查明立法的逐步完善,我国外国法查明与适用的状况有所改善,然而,在我国外国法查明的司法实践中存在着混淆外国法提供与外国法查明,我国法院查明的自由裁量权限制缺失,我国法院在当事人未提供外国法律时直接适用法院地法律,我国法院拒绝当事人提供域外法的理由缺失或不充分以及我国实施外国法查明立法的监督机制缺失等问题。我国学界对解决上述问题的分析与论证尚不够深入,解决上述问题将有益于改善我国外国法查明立法的有效实施和我国相关立法的不断完善。

The ascertainment legislation of foreign law in China is the legal basis of ascertainment of foreign law in China. It can only play its important role when it has been effectively implemented in the judicial prac-tice of ascertainment of foreign law in China. In recent years, with the gradual improvement of ascertainment legislation of foreign law in China, conditions of ascertainment and application of foreign law in China have improved. However, there exist such problems as contusion of provision and ascertainment of foreign law, lack of restriction for discretionary power of the Chinese court, the Chinese courts directly apply lex fori when the parties do not provide the foreign law, the reason of the Chinese court refusing the foreign law provided by the parties is absent or not sufficient as well as lack of supervision mechanism on implementation of the Chinese ascertainment legislation of foreign law in the judicial practice of ascertainment of foreign law in China. Now the research of the departments of theory on these issues is still not deep enough. The research on these issues in-depth analysis is beneficial to further improve the effective implementation of ascertainment legislation of foreign law in China and the legislation of ascertainment of foreign law.