When a civil case has any elements, that is, (1) one or both parties as the subject of the dispute are foreigners, stateless persons, foreign enterprises and organizations; (2) The legal facts of the occurrence, alteration or extinction of the civil legal relationship are overseas; (3) The disputed property of the parties abroad is a foreign-related civil litigation case. In the trial of foreign-related civil cases, we must abide by the basic norms for the trial of foreign-related civil cases stipulated by law.

The trial of domestic civil cases can only apply our laws. However, in the trial of foreign-related civil cases, there is the problem of choosing to apply other countries' laws. This choice is manifested in two aspects: one is to choose to apply procedural law, and the other is to choose to apply substantive law.

As far as procedural law is concerned, Article 235 of the Civil Procedure Law stipulates: "The provisions of this Part shall apply to foreign-related civil litigation within the territory of People's Republic of China (PRC). Where there are no provisions in this part, other relevant provisions of this law shall apply. " Generally speaking, the choice of applicable procedural law should, in principle, apply the fourth part of China's civil procedure law, Special Provisions on Foreign-related Civil Procedure. Where there are no provisions in this part, the relevant provisions of other parts of the Civil Procedure Law shall apply, such as the principles of taking facts as the basis, taking the law as the criterion, arguing, handling, equality of litigation rights of the parties, mediation and so on. However, if there are special provisions on procedures in the international treaties that China participates in or concludes, we must first choose to apply the international treaties. It is called "the principle of observing international treaties", except, of course, the clauses on which our country has declared reservations.

In addition, we should pay attention to how to deal with the rules of evidence distribution. In judicial practice, if the procedural law stipulates the rules of evidence distribution, the parties cannot choose to apply them. Where there are provisions in the substantive law, it can be applied, and its application is not excluded. We can't think it belongs to procedural law just because it involves the rules of evidence distribution, so we mistakenly think that we should choose to apply the provisions of China's procedural law.

As far as the overall application of law is concerned, every foreign-related case must solve the problems of nature, jurisdiction and application of law, and give a clear answer in the judgment. The following are described separately:

I. Quality issues

When a natural person, legal person, even a country or an international organization brings a civil and commercial lawsuit to the court in China, the first problem is the qualitative problem, that is, the so-called identification problem in private international law, that is, determining a cause of action for the case. Therefore, first of all, we should correctly classify cases into appropriate legal fields according to their nature, so as to find and apply the correct rules of jurisdiction, conflict of laws and substantive law. For the characterization of a foreign-related civil and commercial case, because the case always involves two or more jurisdictions, and different jurisdictions often have different characterization of the same fact, the results of characterization with different legal systems and legal concepts are often different. Judging from judicial practice, courts in most countries generally apply the statutory nature of courts, and so do courts in China. However, some legal acts and facts may meet the conditions of two legal norms at the same time, that is, there is the so-called concurrence of laws and regulations and the concurrence of contracts and tort. In this case, the plaintiff can bring a lawsuit against both the contract and the tort. Generally speaking, the choice of the parties should be respected, that is, according to the cause of action put forward by the parties, which is also the practice adopted by most countries. It should be noted that according to the Provisions of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Foreign-related Civil or Commercial Contract Disputes (which came into effect on August 8, 2007), the parties can only choose the applicable law of the contract in an express way, and the time for the parties to choose or change the applicable law of the contract dispute is before the end of the debate in the court of first instance.

Two. jurisdiction

The problem of management right is the first problem that Chinese courts need to solve when deciding whether to accept foreign-related civil and commercial cases. The solution must be to find out the appropriate basis for exercising jurisdiction according to the provisions of China's civil procedure law. First of all, it should be characterized according to the facts of the case. According to the specific legal relationship determined by the nature of the case, does the relevant provisions of China's civil procedure law indicate that our courts have the right to exercise jurisdiction? Secondly, when the court decides to exercise its management power, it must be ascertained that the jurisdiction of the court has not been excluded:

(1) does not involve foreign countries or property, because the country and its property enjoy immunity.

② Diplomatic representatives of foreign countries or international organizations are not involved, because diplomatic representatives enjoy privileges and immunities. However, Article 14 of China's Regulations on Diplomatic Privileges and Immunities provides two exceptions to the immunity from civil jurisdiction enjoyed by diplomatic representatives: one is the succession proceedings conducted by diplomatic representatives in their private capacity; Second, the lawsuit that diplomatic representatives engage in professional or commercial activities outside the scope of official duties for private interests in China. In other words, diplomatic representatives do not enjoy immunity in the above two types of cases, and our courts have the right to exercise jurisdiction. (3) There is no valid arbitration agreement between the parties, because both the Civil Procedure Law of China and the new york Convention 1958, to which China is a party, stipulate that a valid arbitration agreement has the effect of excluding the jurisdiction of the court. Finally, the judge should judge whether the courts in our country have proper jurisdiction according to the evidence provided by the plaintiff.

Third, the application of conflict of laws.

Conflict law is to guide how to find and interpret laws when dealing with foreign-related civil cases, and apply the laws so found and interpreted to cases. Especially the first two, that is, discovering the law and interpreting the law, are the main contents of conflict law. In judicial practice, the biggest difference between domestic cases and foreign-related cases lies in the application of conflict rules. The basis of substantive law applicable to the trial of foreign-related cases must be guided by conflict rules, unless the case being tried belongs to the scope of application of "directly applicable law"; However, when trying domestic cases, courts always directly apply their own substantive rules. Therefore, when the court determines that a case is a foreign-related case and enjoys jurisdiction according to law, the next task is to find the conflict rules applicable to substantive law. Generally speaking, the following questions need to be considered in turn:

(1) Investigate whether the case falls within the scope of application of international conventions. If both countries involved in the case are parties to a convention, and the international treaty has specific rules on the disputed points of the case, the substantive rules of the international treaty should be directly applied without considering the conflict rules.

(2) If the specific disputes in a case do not fall within the scope of application of the international convention, or the international convention does not make specific provisions on the disputes, indicating that the international treaty cannot be applied to the case, it is necessary to choose appropriate conflict of laws rules.

(3) For disputes over specific cases, if China is a party to an international treaty on conflict of laws and both parties are parties to the convention, the relevant conflict rules in international treaties must be applied. (4) If a conflict norm stipulates the application of foreign law, we should find out the specific provisions of foreign law on the disputed points of the case in the way stipulated by China law. If there are specific provisions in this respect, the provisions shall be applied to judge the rights and obligations of the parties; Where there is no specific provision or uncertainty, the relevant provisions of the laws of China or the laws of the country most closely related to this case shall apply.

⑤ If the conflict of laws norms stipulate that the laws of China shall be applied, the specific provisions of China law on the disputed points in this case shall be the applicable law; If there are no relevant provisions in the laws of China or international treaties to which China is a party (regardless of whether the country of the foreign party to the case is a party to the convention or not), relevant international practices can be applied. Thus, after accepting foreign-related civil and commercial cases, when choosing the applicable law, our courts should first look at whether the two countries are both parties to the relevant international conventions; Secondly, according to the relevant conflict rules in Chinese law, we should choose to apply a domestic law rule related to the case or selected by the parties; Finally, see if there are any relevant international practices. These three steps are carried out in turn until the appropriate applicable law is selected.

The above research only discusses the unique rules of law application in the trial of foreign-related civil cases. There are some ways to find and interpret laws when dealing with foreign-related civil cases, and apply the laws so found and interpreted to cases, which are the same as those we studied in domestic civil cases before, so I won't repeat them here.

The applicable operators are a judge and a prosecutor, who are entrusted by law to supervise.

Specific arguments should be followed by vivid typical cases as arguments.