仲裁司法审查报核程序“外部化”问题及解决路径——以63份裁判书为分析样本

The Issue of "Externalization" of the Arbitration Judicial Review of Reporting Procedure and Its Resolution——A Sample of 63 Judgments Was Used as an Analysis

仲裁司法报核程序作为仲裁司法审查程序中的配套程序,虽然首次以司法解释的形式予以确立,使其具有一定程度的“外部化”,但其实质依旧是法院内部程序。报核程序的“外部化”也为司法实践带来新的问题,上级法院频繁以下级法院未履行报核程序为由而撤销下级法院作出的裁定,上级法院的做法将面临没有法律明确规定且可能有破坏现有程序稳定性的风险。因此,对于人民法院的做法应当予以适当的调整,第一不允许上级法院仅仅以下级法院未履行报核程序为由而启动监督程序以此来撤销原裁定,第二用司法建议书代替裁定书,第三加强法官纪律责任监督,以此维护程序稳定和当事人的合法权利。

As a supporting procedure in the judicial review procedure of arbitration,although the arbitration judicial reporting procedure is established for the first time in the form of judicial interpretation,so that it has a certain degree of“externalization”,its essence is still the internal procedure of the court.The“externalization”of the reporting procedure has also brought new problems to judicial practice,and higher courts have frequently failed to perform the reporting procedures for lower courts.By revoking a decision made by a lower court for reasons,the higher court’s approach will face the risk of being not expressly provided for by law and may undermine the stability of existing procedures.Therefore,the practice of the people’s courts should be appropriately adjusted,and the first is not allowed for the higher court to initiate a supervision procedure to revoke the original ruling solely on the grounds that the lower court has not performed the reporting procedure.Second,judicial suggestions are used instead of adjudication,and third,judicial supervision of disciplinary responsibility is strengthened,so as to maintain procedural stability and the legitimate rights of the parties.