我国涉“一带一路”建设民商事案件的外国法查明机制创新研究——基于涉“一带一路”建设典型和专题指导性案例的分析

Innovation of Foreign Law Identification Mechanism Involving China’s“Belt and Road”Construction Civil and Commercial Cases:Analysis Based on Typical and Special Guiding Cases Involving“Belt and Road”Construction

创新外国法查明机制是推进新时代司法服务和保障“一带一路”建设、推动实现民商事审判能力现代化的重要举措。聚焦最高人民法院和地方高级人民法院发布的涉“一带一路”建设典型和专题指导性案例的新趋势和新特点,正确认识外国法查明责任分配、查明路径创新、查明不能标准等司法系统和当事人的共同关切,深刻把握冲突法理念嬗变和规则重构的基本规律,以构建《中华人民共和国涉外民事关系法律适用法》“职权主义下法官和当事人分工查明机制”为目标,以完成涉“一带一路”外国法的第三方查明平台的整合和专家库建设、加强外国法查明国际合作为手段,修正立法和司法实践之不足,提升司法质效,为高质量共建“一带一路”营造更加公平的法治化营商环境。

Innovating foreign law identification mechanism is a key measure to improve judicial services in the new era,guarantee the“Belt and Road”construction,and promote the modernization of civil and commercial judicial capacity.Therefore,it is necessary to correctly understand such common concerns of the judicial system and the parties concerned as the responsibility assignment for foreign law identification,identification path innovation and identification failure criteria by focusing on the new trends and new characteristics of the typical and special guiding cases involving“Belt and Road”construction released by the Supreme People’s Court and the local higher people’s court,and deeply grasp the basic regular patterns of the concept evolution of the conflicting laws and the rule reconstruction.And meanwhile,it is suggested,with constructing the“judge-party division identification mechanism under authority doctrine”proposed in Law of the People’s Republic of China on the Application of Laws in Foreign Related Civil Relations as the goal and with completing the integration of the third-party identification platform involving“Belt and Road”foreign laws and the expert database construction as well as strengthening international cooperation in foreign law identification as a means,to amend the deficiencies of legislation and judicial practice,and improve judicial quality and efficiency so as to create a fairer legal business environment for jointly constructing“Belt and Road”with high quality.