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 Laws in Foreign-Related Civil Relations (2)
In order to correctly apply the "Law of the People's Republic of China on the Application of Laws in Foreign-Related Civil Relations" and in conjunction with trial practice, this interpretation is formulated on the ascertainment of foreign laws in the People's Courts' hearing of foreign-related civil and commercial cases.
Article 1 If the people's court applies foreign laws to foreign-related civil and commercial cases, it shall ascertain the laws of that country in accordance with the provisions of paragraph 1 of Article 10 of the Law on the Application of Foreign-related Civil Relations.
If the parties choose to apply foreign law, the law of that country shall be provided by the litigant.
If the application of foreign law does not caused by a party choosing to apply, the people's court shall ascertain the law of that country.
Article 2 The people's court may ascertain foreign laws through the following channels:
(1) provided by the party concerned;
(2) provided by the central authority or competent authority of the other party through judicial assistance channels;
(3) to request, through the Supreme People's Court, a Chinese embassy or consulate in that country or a embassy or consulate of that country in China to provide it;
(4) Provided by the participants in the legal investigation cooperation mechanism established or participated in by the Supreme People's Court;
(5) Provided by experts of the International Commercial Expert Committee of the Supreme People's Court;
(6) provided by legal investigation service agencies or domestic and foreign legal experts;
(7) Other appropriate channels.
If the people's court is unable to obtain a foreign law through one of the channels provided for in the preceding paragraph, or the content of the foreign law obtained is unclear and insufficient, it shall make additional investigations through the different channels provided for in this paragraph.
Where a people's court requires a party to assist in providing a foreign law in accordance with the provisions of paragraph 1 (1) of this Article, it shall not hold that the foreign law cannot be ascertained solely on the grounds that the party has not provided assistance.
Article 3 Where a party provides a foreign law, it shall submit the specific provisions of the law of that country and explain the way to obtain it, its effectiveness, and its relevance to the dispute in the case. Where the foreign law is case law, the full text of the case law shall also be submitted.
Article 4 If a legal ascertainment service agency or legal expert provides foreign law, in addition to submitting the materials specified in Article 3 of this Interpretation, they must also submit the qualification certificate of the legal ascertainment service agency, the identity and qualifications certificate of the legal expert, and attach a written statement of no interest in the case.
Article 5: All relevant materials related to foreign laws identified shall be presented in court. The People's Court shall hear the opinions of all parties on the content of foreign laws and their understanding and application.
Article 6 The People's Court may convene a pre-trial conference or use other appropriate methods to determine the scope of foreign laws that need to be ascertained.
Article 7 If the People's Court deems it necessary, it may notify a legal ascertainment service agency or legal expert that provides foreign laws to appear in court for questioning. If a party applies for a legal ascertainment service agency or legal expert to appear in court, the people's court may allow it if it deems it necessary.
If it is really difficult for the legal identification service agency or legal experts to appear in court on site, they can accept questioning online, except where the laws of the country where the legal identification service agency or legal experts are located have prohibitive provisions on cross-border online participation in court hearings.
The legal ascertainment service agencies or legal experts who appear in court only express opinions on foreign laws and their understanding, and do not participate in other court proceedings.
Article 8 The People's Court shall handle the content, understanding and application of foreign laws respectively according to the following circumstances:
(1) If the parties have no objection to the content, understanding and application of the foreign law, the people's court may confirm it;
(2) If the parties have objections to the content, understanding and application of foreign laws, they shall explain the reasons. If the People's Court deems it necessary, it may make additional inquiries or require the parties to provide additional materials. If the party concerned still has objections after supplementary investigation or additional materials are provided, the case shall be reviewed and determined by the People's Court;
(3) If the content of a foreign law has been determined by an effective judgment of the People's Court, the People's Court shall confirm it, unless there is contrary evidence sufficient to overturn it.
Article 9 The people's court shall determine the time limit for the parties to provide foreign laws based on the time required to complete relevant procedures and other procedures based on foreign laws. If a party has specific reasons to explain that it is unable to provide foreign law within the time limit determined by the People's Court and applies for an appropriate extension of the time limit, the People's Court may grant it depending on the circumstances.
If a party chooses to apply foreign law and fails to provide the foreign law within the time limit determined by the People's Court without justifiable reasons, the People's Court may determine that the foreign law cannot be ascertained.
Article 10: When a people's court applies foreign law to hear a case in accordance with the law, it shall state in the judgment document the process of ascertaining the foreign law and the content of the foreign law; if the people's court determines that the foreign law cannot be ascertained, it shall state the reasons why it cannot be ascertained.
Article 12 When the People's Court ascertains the laws of the Hong Kong Special Administrative Region and the Macao Special Administrative Region, it may refer to and apply this interpretation. If relevant laws and judicial interpretations have other provisions for ascertaining the laws of the Hong Kong Special Administrative Region and Macao Special Administrative Region, such provisions shall prevail.
Article 13 This interpretation shall come into force as of January 1, 2024.
After this interpretation is promulgated and comes into effect, if the judicial interpretation previously issued by the Supreme People's Court is inconsistent with this interpretation, this interpretation shall prevail.
