我国关于外国法查明的若干问题探析

外国法查明是国际私法中的一个重要问题,我国法院在司法实践中涉及外国法查明的情形越来越多,但我国现行立法对该问题并未有明文规定.最高人民法院的司法解释虽在一定程度上弥补了立法的空白并构建了一套较为可行的方法,但实践中仍存在着许多值得探讨和完善的问题:查明外国法是法院的法定义务抑或自由裁量事项;当事人证明外国法的证据方式和效力如何;专家的范围、专家意见的效力如何.这些问题都需要立法和实践予以进一步明确.

Probes into Several Issues of Ascertainment of Foreign Law in China

Ascertainment of foreign of law is an importan t issue of private international law. Now more and more Chinese courts encounter the problem of ascertaining foreign law in practice, but there is no relative legislation on the issue in China. Although the judicial interpretations of the Supreme Court of China, to some extent, make up for the lack of legislation and provide several feasible ways of ascertaining foreign law, some issues still need to be discussed. Is the ascertainment of foreign law a duty or a discretionary matter of the court? What is the form and how about the effect of the proof for foreign law provided by party? What is the scope of the experts and how about the effect of the expert opinion? All these problems should be resolved by legislation and judicial practice.