仲裁机构民间化的境遇及改革要略

Non—Governmentalization of Arbitration Institutes:Difficulty and Wayout

仲裁机构的民间性问题在立法和理论上业已论定。重提这一问题,原因在于实践操作上的行政化倾向。中国的仲裁机构民间性必然受中国"处境"的影响,行政推进性的社会传统使仲裁机构遭遇了行政异化的危机,实证地表现为人事任免、财权掌控与仲裁运作等三个方面具有深重的行政化痕迹。仲裁机构的行政异化历史地形成,也该当历史地解决。变革之道首在于转变行政监护的传统,以司法监督的制衡结构取代之;次在于以行业监护置换行政监护;同时推进仲裁行政管理的内化,提高仲裁的案件管理效率。仲裁机构在实践维度的民间化进程还必须把握好改革的力度、向度和进度。建立一种兼顾理论与实践、变通传统与未来的中庸方略值得赞许。

The issue of non--governmentalization of arbitration institutes has reached a conclusion in legislation and theory. The reason why this issue is discussed again in the contemporary ethos is the tendency of administration in practice. The nature of arbitration institutes in China has to be affected by the ＂situation＂ of China. Arbitration institutes have faced the crisis of the adminis- trative alienation because of the social tradition of administrative promotion, which is shown in several aspects. In the view of personnel appointment, most of persons in arbitration institutes are executive staff. As to the case of finance, the income and expenditure of arbitration institutes are characterized as public finance. In the operation of arbitration, the arbitration institutes are built up according to the administrative divisions, and the management of cases has administrative attributes. The administrative alienation of arbitration institutes has been formed historically, so it also should be resolved in a historical way. In primary stage of the administrative alienation, arbitra- tion institutes benefit a lot from the tendency of administration. Arbitration institutes not only profit from the high efficiency of administrative system in the arbitration efficiency, but also ad- vance the social acceptance of arbitral awards with the help of the authority of administrative or- ganizations. What＇s more, the tendency of administration can also bring various administrative welfares to the staff of arbitration institutes. However, the arbitration institutes which have been aliened administratively appear to breach the arbitration principle of self--determination by par- ties, and to execute judiciary authority beyond the administrative power, which run counter to the obligation of the WTO agreements China bears. The first step to reform is to replace the tradition of ＂administrative guardianship＂ by ＂judi- cial supervision＂, so as to cut off the relationships between the government and arbitration insti- tutes. The second is to transfer the ＂administrative supervision＂ into ＂association supervision＂, so that the arbitration association will safeguard the arbitration institutes. At the same time, the administrative management of arbitration should be internalized to promote the efficiency of arbi- tration. Besides, the intensity, dimension, and progress of reform should be properly held in the practice of the non--governmentalization of arbitration institutes.