我国仲裁机构现状实证分析

An Empirical Study on the Status Quo of China's Arbitration Institutions

仲裁机构的性质定位是讨论仲裁法修改方案和仲裁机构改革方案时无法回避的问题,该问题的解决离不开对我国仲裁机构现状的准确认识。北京仲裁委员会组织实施的两次全国性问卷调查所获得的数据表明,我国有相当部分仲裁机构在性质定位、人员状况、财政状况以及业务状况四个方面都存在明显的行政化色彩。从"国家与社会"的分析视角来看,造成不同仲裁机构民间化程度存在差异的根本原因在于全国各地国家与社会关系的重构进程不同步。需要利用国家和社会力量促进国家与社会关系在仲裁领域的调整,消除仲裁机构之间的不合理差异,推动仲裁机构的转型。在转型过程中,必须坚持有利于仲裁使用者和增进公共利益的立场。

The orientation of the nature of arbitration institutions is one of the key problems in discussing the revision of arbitration law and the reform of arbitration institutions, which is impossible to be resolved properly without an accurate knowledge of the status quo of arbitration institutions. Based on the data collected through two national surveys carried out by Beijing Arbitration Commission, this article tries to draw a complete and nuanced picture of the status quo of China＇s arbitration institutions. To particularize it, the data shows that the natures of the arbitration institutions in practice are diverse and there is a comparatively high percentage of arbitration commissions which are treated as institutions with quasi--governmental nature. There is also certain percentage of arbitration commissions with most of its commissioners held concurrently by local government officials rather than professionals in legal or commercial field, or with the head of the secretariat held concurrently by local government officials and the staff offered with tenure like civil servant. Meanwhile, about half of the arbitration institutions depend on fiscal appropriation for their full or part of treasury. In addition, while nearly half of the arbitration institutions prefer to promote arbitration by administrative means, there is still a large sum of arbitration institutions with very low case--load. As to the case handling, some arbitration institutions use its own personnel as arbitrators. All the aforementioned governmental features existing in the nature, personnel, financing and operation of arbitration institutions could be attributed to some direct factors. But according to the framework of state--civil society, the fundamental reason that accounts for the different features among arbitration institutions is the regional difference in the reconstruction of structure relationship between the state and the civil society. To reduce the governmental features unreasonably attaching to the arbitration institutions, we should take advantage of the force both from the state and the civil society so as to accelerate the adjusting of the relationship of the state and the civil society in the field of arbitration and facilitate the transformation of arbitration institutions. The transforming process of arbitration institutions will inevitably lead to the redistribution of interest among related parties which calls for the stance of favoring arbitration users and benefiting the public interest.