论外国法查明不能-国际法学专业论文.docxVIP

3 3 能的处理方式上应体现最密切联系原则。具体而言，在有证据表明存在相 比我国与案件有更密切联系的第三国时，应适用该国的相关法律；在不存 在有更密切联系的第三国或有更密切联系第三国的法律无相关规定时，则 适用我国的相关法律，这也是最密切联系原则的体现。 关键词：外国法查明不能 认定 补救 处理规则 PAGE PAGE 1 Abstract In the case of foreign-related civil and commercial proceedings, in accordance with the conflict of law should apply a foreign law, the related contents of foreign law could not be ascertained after the court or the parties using certain methods within a certain period of time. “The failure of ascertaining foreign law” is a body of rules in which the standards for this kind of situation and the alternative solution for that situation are both included. In itself, it is a part of “Ascertainment of foreign law”, which is different from the results of the failure in ascertaining foreign law, is also different from the rules dealing with foreign law loopholes and the rules dealing with the mistakes in ascertaining or interpreting foreign law. “Ascertainment of foreign law” is the premise for the court applying foreign law in trial. In absence of it, “Extraterritorial effect of law” will exist in name only; Private International Law will also lost this basic standpoint. Therefore, “Ascertainment of foreign law” is one of the most important problems in Private International Law. Meanwhile, in the many aspects of “Ascertainment of foreign law”, “The failure of ascertaining foreign law” plays a key role. Definition and status of “The failure of ascertaining foreign law” are the main content of the first part. The second part makes specific research on the determination of “The failure of ascertaining foreign law”, which includes determining subject and determining standards two areas. The court should be the determining subject, mainly based on the considerations of Judicial Sovereignty maintenance, law loopholes determination, responsibilities distribution and methods of “Ascertainment of foreign law”, and the confirmation of foreign law. Determining standards includes the period, the responsibilities