Application of Foreign Law in Chinese Courts

• 발행기관: 전남대학교 법학연구소
• 저자명: 쑤쇼링(Su XiaoLing)(蘇曉凌)
• 간행물 정보: 『법학논총』제34권 제1호, 7~28쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.04.30

영문 초록

Where a civil case involves foreign elements the choice of law will be appliedon and foreign Law should come into use in the hearing thereof. On October28, 2010, the Act on Application of Laws to Civil Matters involving Foreign Element(“CPILA”) of the People’s Republic of China (“China” or “PRC”) was approved bythe Standing Committee of the National People’s Congress (“NPC”)and took effecton April 1, 2011. The Act is the first national-level law that consolidates the conflictof laws principles into a single piece of legislation. In December 2012, TheInterpretations on Several Issues Concerning Application of the Act on Applicationof laws to Civil Matters involving Foreign Element (I) (Interpretation I) was issuedby Supreme People s Court and took effect on January 7, 2013. CPILA andInterpretation I clarified the stance of Chinese law on the application of foreignlaw in civil litigation. According to CPILA and Interpretation I, It is a fundamental principle that wherea People’s Court applies foreign law as the applicable law, it has to identify thelaw ex officio. But when the applicable law is selected by parties on the basisof party autonomy allowed by conflict law of china, the parties have the obligationof assistance on ascertaining the foreign law. A people’s court may ascertain the foreign law through such means as: (1)provided by the parties in litigation; (2) the central authority determined by theagreement of judicial assistance between China and the foreign country; (3) theChinese embassy or consulate in the foreign country; (4) the foreign country’sembassy or consulate in China; or (5) Chinese or foreign legal experts. Nevertheless,it is not necessary for the judge to exhaust all above-mentioned methodsto identify the foreign law in a case. If, however, the foreign law cannot be determined despite all reasonable efforts,Chinese law shall be applied. In addition, should either party disagree with thefirst instance court about the determination on foreign law, the appeal could belodged to the appellate court for review.

목차

Ⅰ. 서론

Ⅱ. 외국법의 성질

Ⅲ. 외국법의 조사의무 또는 입증책임

Ⅳ. 외국법의 조사 방법

Ⅴ. 외국법 불분명한 경우의 처리

Ⅵ. 외국법의 해석

Ⅶ. 異法지역간의 법의 조사와 증명

Ⅷ. 맺음말

키워드

중국 국제사법 외국법의 조사·증명 당사자와 법관의 역할 조사방법 외국법의 해석 보조방안 China private international law ascertainment of foreign law role of party and judge means of ascertainment interpretation of foreign law default rule