論外國法的查明
發(fā)布時間：2018-12-10 08:45
【摘要】：外國法的查明是國際私法的基本制度之一，是沖突規(guī)范中一個重要的問題，對司法實踐有著重要意義。在國際上對外國法查明相關(guān)問題的研究，無論是理論學說上，還是司法實踐中都有許多值得研究和探討的地方。在外國法查明責任分配上，我國首次明確了法院的查明責任，同時對于不同的案件類型有細化的處理：如果當事人沒有選擇法律適用，法官依據(jù)沖突規(guī)范的指引，認為應(yīng)當適用外國法時，由法官承擔查明責任；如果當事人選擇適用外國法，則主要由當事人承擔查明責任。在外國法查明途徑問題上，本文認為法律不宜采用列舉式的手段過多地規(guī)定查明方法，但窮盡一些常用的、有效的途徑是必要的，如網(wǎng)絡(luò)資源、法律書籍、專家意見等，其次，對無論哪種途徑查來的外國法，法院都應(yīng)該進行詳細的審查、質(zhì)證認證。在外國法查明不能時，應(yīng)該堅持我國慣常的做法，即直接適用內(nèi)國法，但在查明不能的認定標準上，應(yīng)當注意從合理期限、查明責任分配、窮盡合理方法等方面進行衡量。本文分為四個部分，結(jié)合案例著重就外國法查明制度中的三個問題進行論述，即外國法查明責任分配、外國法查明途徑以及外國法查明不能的認定和處理。 第一部分介紹了案例相關(guān)情況以及法院的判決理由，引出了本案中值得討論的外國法查明責任分配、外國法查明途徑、外國法查明不能等相關(guān)問題。 第二部分主要論述外國法查明的責任分配。國際上存在三種做法，一是法官承擔嚴格的外國法查明責任，二是當事人承擔全部的外國法查明責任，三是法官和當事人相互配合查明外國法。我國現(xiàn)行立法原則性地規(guī)定了法院查明外國法的責任，但是不同的案件類型中，法院和當事人承擔不同的查明責任，即在當事人選擇適用外國法時，主要由當事人承擔查明責任；根據(jù)沖突規(guī)范指引，法官認為應(yīng)當適用外國法時，主要由法院承擔查明責任。之后討論了本案中關(guān)于查明責任分配的四個問題，然后就這個問題對立法提出了不足與建議。 第三部分論述的是外國法查明途徑。首先介紹了幾種比較常用的外國法查明途徑，，即專家意見、法律書籍、學者著述、司法協(xié)助、網(wǎng)絡(luò)資源，并且在介紹每一種途徑時提出了相關(guān)的注意事項與建議，然后主要針對本案中專家意見書的問題進行了分析。 第四部分論述的是外國法查明不能。首先說明了認定外國法查明不能的主體，即法院，然后從三個方面討論了外國法查明不能的認定標準，即合理期限標準、查明責任分配標準、窮盡查明途徑標準，接著介紹了查明不能時國內(nèi)外常用的三種處理方法，即直接適用內(nèi)國法、替代適用內(nèi)國法、駁回當事人訴訟請求或抗辯，最后就本案中涉及到的以上問題進行了分析。
[Abstract]:The ascertainment of foreign law is one of the basic systems of private international law and an important issue in conflict norms, which is of great significance to judicial practice. In the international study of foreign law, there are many worthy of study and discussion, both in theory and in judicial practice. For the first time, China has made clear the responsibility of the court for ascertaining responsibility in foreign law. At the same time, there is a detailed treatment for different types of cases: if the parties do not choose to apply the law, the judge will follow the guidance of conflicting norms. If foreign law is deemed to be applicable, the judge shall bear the responsibility of ascertaining it; If the parties choose to apply foreign law, the parties mainly bear the responsibility of ascertaining. On the question of the way to find out the foreign law, this paper thinks that the law should not use enumerative means too much to define the method of identification, but it is necessary to exhaust some common and effective ways, such as network resources, law books, expert opinions, etc., second, In any case, foreign laws should be scrutinized and cross-examined by the court. When the foreign law can not be ascertained, we should adhere to the usual practice of our country, that is, directly apply the internal law, but we should pay attention to the reasonable time limit, the distribution of responsibility, the exhaustion of reasonable methods and so on. This paper is divided into four parts, which focus on three problems in the foreign law identification system, namely, the distribution of the foreign law identification responsibility, the way of the foreign law identification and the identification and treatment of the foreign law identification. The first part introduces the relevant circumstances of the case and the reasons for the court's judgment, which leads to the relevant problems such as the distribution of the responsibility for the identification of foreign law, the way of the identification of foreign law, and the inability of the identification of foreign law, which are worth discussing in this case. The second part mainly discusses the distribution of responsibility identified by foreign law. There are three international approaches: one is that judges bear strict responsibility for finding out foreign laws, the other is that the parties bear all the responsibilities of finding out foreign laws, and the third is that judges and parties cooperate with each other in ascertaining foreign laws. The current legislation of our country stipulates in principle the duty of the court to find out the foreign law. However, in different cases, the court and the parties bear different responsibilities of ascertainment, that is, when the parties choose to apply the foreign law, The parties shall mainly bear the responsibility of ascertaining; According to conflict norms, when the judge thinks that foreign law should be applied, the court mainly bears the responsibility of ascertaining. Then it discusses the four problems about the allocation of responsibility in this case, and then puts forward some suggestions on the legislation. The third part discusses the ways to find out the foreign law. This paper first introduces several common ways of finding out foreign law, that is, expert opinion, law books, scholars' writings, mutual legal assistance, network resources, and puts forward relevant matters for attention and suggestions when introducing each way. Then it mainly analyzes the problem of expert opinion in this case. The fourth part discusses that foreign law can not be identified. First of all, it explains the main body that can not be identified by foreign law, that is, the court, and then discusses the identification criteria of the identification of foreign law from three aspects, that is, the criterion of reasonable time limit, the criterion of ascertaining the distribution of responsibility, and the criterion of exhausting the means of identification. Then it introduces three kinds of treatment methods which are commonly used at home and abroad when finding out that they can not be found out, that is, direct application of internal law, substitution for application of internal law, rejection of litigant's request or defense, and analysis of the above problems involved in this case.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D997
[Abstract]:The ascertainment of foreign law is one of the basic systems of private international law and an important issue in conflict norms, which is of great significance to judicial practice. In the international study of foreign law, there are many worthy of study and discussion, both in theory and in judicial practice. For the first time, China has made clear the responsibility of the court for ascertaining responsibility in foreign law. At the same time, there is a detailed treatment for different types of cases: if the parties do not choose to apply the law, the judge will follow the guidance of conflicting norms. If foreign law is deemed to be applicable, the judge shall bear the responsibility of ascertaining it; If the parties choose to apply foreign law, the parties mainly bear the responsibility of ascertaining. On the question of the way to find out the foreign law, this paper thinks that the law should not use enumerative means too much to define the method of identification, but it is necessary to exhaust some common and effective ways, such as network resources, law books, expert opinions, etc., second, In any case, foreign laws should be scrutinized and cross-examined by the court. When the foreign law can not be ascertained, we should adhere to the usual practice of our country, that is, directly apply the internal law, but we should pay attention to the reasonable time limit, the distribution of responsibility, the exhaustion of reasonable methods and so on. This paper is divided into four parts, which focus on three problems in the foreign law identification system, namely, the distribution of the foreign law identification responsibility, the way of the foreign law identification and the identification and treatment of the foreign law identification. The first part introduces the relevant circumstances of the case and the reasons for the court's judgment, which leads to the relevant problems such as the distribution of the responsibility for the identification of foreign law, the way of the identification of foreign law, and the inability of the identification of foreign law, which are worth discussing in this case. The second part mainly discusses the distribution of responsibility identified by foreign law. There are three international approaches: one is that judges bear strict responsibility for finding out foreign laws, the other is that the parties bear all the responsibilities of finding out foreign laws, and the third is that judges and parties cooperate with each other in ascertaining foreign laws. The current legislation of our country stipulates in principle the duty of the court to find out the foreign law. However, in different cases, the court and the parties bear different responsibilities of ascertainment, that is, when the parties choose to apply the foreign law, The parties shall mainly bear the responsibility of ascertaining; According to conflict norms, when the judge thinks that foreign law should be applied, the court mainly bears the responsibility of ascertaining. Then it discusses the four problems about the allocation of responsibility in this case, and then puts forward some suggestions on the legislation. The third part discusses the ways to find out the foreign law. This paper first introduces several common ways of finding out foreign law, that is, expert opinion, law books, scholars' writings, mutual legal assistance, network resources, and puts forward relevant matters for attention and suggestions when introducing each way. Then it mainly analyzes the problem of expert opinion in this case. The fourth part discusses that foreign law can not be identified. First of all, it explains the main body that can not be identified by foreign law, that is, the court, and then discusses the identification criteria of the identification of foreign law from three aspects, that is, the criterion of reasonable time limit, the criterion of ascertaining the distribution of responsibility, and the criterion of exhausting the means of identification. Then it introduces three kinds of treatment methods which are commonly used at home and abroad when finding out that they can not be found out, that is, direct application of internal law, substitution for application of internal law, rejection of litigant's request or defense, and analysis of the above problems involved in this case.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D997
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