代位请求权情形下仲裁协议的效力问题探讨

Discussion on the Subrogation Right Exercises and the Binding of the Arbitration Agreement

我国现行法定条件下的代位权与传统规定有本质区别,债权人行使代位权,无需与债务人达成一致意见;债权人与次债务人之间没有仲裁合意;债权人未成为债务人与次债务人之间合同关系的当事人。而且,仲裁协议对未签署人的约束力不可无限扩大,应该符合仲裁理论的基本原则要求。因此,债权人行使代位权,不应受约束于债务人与次债务人之间的仲裁协议。

The subrogation rights under the existing statutory provisions are essentially different from the traditional. Creditors to exercise the right of subrogation do not have to reach agreement with the debtor; no consensual arbitration meeting between creditors and second-class debtors; a creditor is not become the party of the contractual relationship between debtor and second-class debtor. Moreover, the binding arbitration agreement was signed on an unlimited expansion should be in line with the basic principles of the arbitration request. Thus, creditor who exercise the right should not be bound by the arbitration agreement between the debtor and the second-class debtors.