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Several Issues Concerning the Application of the Law

On December 1, 2023, the Supreme People’s Court issued the “Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Law of the People’s Republic of China on the Application of Foreign Related Civil Relations (II)” (hereinafter referred to as “Interpretation II”), and will come into effect on January 1, 2024, We have systematically standardized the key and difficult issues that have long constrained the identification of foreign laws in judicial practice.

Interpretation (II) adheres to a problem oriented approach, designs the content of the articles from a practical and practical perspective, and improves the enthusiasm and work efficiency of frontline judges in identifying foreign laws. Interpretation (II) greatly expands the channels for foreign legal investigation, not only enhancing the operability of the investigation channels, but also providing open regulations that other appropriate channels can be utilized. At the same time, Interpretation (II) has refined the procedures for identifying foreign laws and clarified and unified the standards for reviewing and identifying foreign laws.

One is to clarify the responsibility for identifying foreign laws. According to Article 10, Paragraph 1 of the Law on the Application of Law, people’s courts have the obligation to ascertain foreign laws, and “provided by the parties” is only one of the ways for Chinese courts to ascertain foreign laws. The legal provision stipulates that parties who choose to apply foreign laws have an obligation to provide them, as in such cases, the parties are more familiar with foreign laws and providing them is beneficial for improving trial efficiency.

The second is to expand the channels for identifying foreign laws. There is no clear provision in Chinese law regarding the channels for identifying foreign laws. On the basis of summarizing the existing judicial interpretation provisions, Interpretation (II) provides seven ways for people’s courts to ascertain foreign laws in Article 2, Paragraph 1. One is provided by the parties involved, which is the most common way; The second is to be provided by the central or competent authorities of the other party through judicial assistance channels; The third is to request the Chinese embassy or consulate in the country to provide information through the Supreme People’s Court; The fourth is provided by the parties involved in the legal investigation and cooperation mechanism established or participated in by the Supreme People’s Court; Fifth, provided by experts from the International Commercial Experts Committee of the Supreme People’s Court; Six is provided by legal investigation service agencies or domestic and foreign legal experts; Seven is other appropriate ways.

The third is to clarify the procedures and forms of providing foreign laws. Article 3 of Interpretation (II) first stipulates the scope of foreign law provided by the parties, including specific provisions, channels of acquisition, effectiveness, and relevance to the case dispute. If the foreign law is case law, the full text of the case should also be provided. In order to reduce ineffective labor and improve the efficiency and accuracy of identifying foreign laws, Article 6 of Interpretation (II) stipulates that before identifying foreign laws, the people’s court may convene a pre-trial meeting or other appropriate means to determine the scope of foreign laws that need to be identified. Of course, the above-mentioned provisions do not limit the parties to continue submitting academic works, theoretical explanations, or other reference materials related to foreign laws, or other opinions on the understanding and application of foreign laws.

The fourth is to clarify the procedures for reviewing and recognizing foreign laws. Foreign law is the governing law that determines how the rights and obligations of parties are allocated, and people’s courts should fully protect the right of parties to express their opinions. Article 5 of Interpretation (II) stipulates that relevant materials of foreign laws identified shall be presented in court, and the parties shall fully debate the content, understanding, and application of foreign laws. On this basis, Article 7 of Interpretation (II) stipulates that legal investigation service agencies and legal experts may appear in court to assist in the investigation of foreign laws. On the one hand, the people’s court may notify the legal investigation service agency or legal experts to appear in court for questioning when deemed necessary; On the other hand, the parties may apply for a legal investigation service agency or legal expert to appear in court to make an explanation, and the people’s court may allow it if deemed necessary.

The fifth is to clarify the standards for reviewing and recognizing foreign laws. How to confirm the authenticity of foreign laws presented in court and accurately understand and apply them has always been a difficult problem in foreign-related civil and commercial trials. Article 8 of Interpretation (II) provides for three situations. The first item emphasizes the provision of Article 16 of Interpretation (1), which states that “if the parties have no objection to the content, understanding, and application of foreign laws, the people’s court may confirm them.”. The second item stipulates how to handle objections from the parties involved. On the one hand, in order to prevent parties from delaying litigation on the grounds of objection to foreign laws, it is stipulated that parties who raise objections need to provide reasons; On the other hand, if the reasons are valid, the people’s court can resolve the objection by supplementing the investigation or providing additional materials. The third item is based on the principles of litigation economy and convenient litigation for the parties. For foreign laws that have been determined by effective judgments, it is stipulated that the people’s court should “confirm them”, while considering the possibility of foreign laws being revised or invalidated. Therefore, it is stipulated that “except for cases where there is evidence to the contrary that can be overturned”.
The sixth is to clarify that the judgment document must record the process of identifying foreign laws. Article 10 of Interpretation (II) requires that the judgment document should include the process of identifying foreign laws and the content of foreign laws. If it is determined that foreign laws cannot be identified, the reasons for the inability to identify should be stated.

The seventh is to clarify the principles for handling expenses. The laws of our country and the Measures for Payment of Litigation Costs do not clearly identify the expenses of foreign laws as litigation costs. In view of this, Article 11 of Interpretation (II) provides provisions on how to handle the case where the parties present the cost of investigation as a litigation claim. If the parties agree on the legal investigation of the cost burden, they shall fully respect the autonomy of the parties and handle it in accordance with their agreement; If there is no agreement, the people’s court needs to support reasonable investigation fees based on the claims of the parties, combined with foreign laws to determine the situation and the specific circumstances of the case.

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