海峡两岸“仲裁裁决参照民事判决认可与执行”:立法悖谬与司法困境

On the Cross-Strait Recognition and Enforcement of Arbitration Referred to Civil Judgment: the Legislative Paradox and Judicial Dilemma

仲裁裁决认可与执行制度具有独立性,从可认可裁决的界定标准、认可审查事项到认可执行程序,均不同于民事判决的认可与执行。当前海峡两岸仲裁裁决认可与执行制度却忽视了这一特点,将仲裁裁决的认可执行与民事判决的认可执行合并立法,并且仲裁裁决参照民事判决予以认可,造成了司法实践中,大陆法院审查事项的悖谬和台湾地区法院审查事项与程序开展法律适用的困难,影响了仲裁裁决的认可和执行,并最终影响了当事人对仲裁机制的选择。为进一步促进仲裁裁决的流通,两岸应制定双边或单边的专项性的仲裁裁决认可与执行制度。

The recognition of arbitral awards and its enforcement system have, in fact, their own respective independence with differences in the recognition and enforcement of the civil judgments, from defined standards of award recognition, accreditation review matters to an approved execution program. However, the current recognition of arbitration and the enforcement system between the two sides have ignored the characteristics. As a matter of fact, they practice the policy of amalgamated legislation, and at the same time approve arbitral awards with reference to civil judgment, which result in the paradox of review matters by mainland courts in judicial practice and the difficulty of review matters and procedures to carry out laws by Taiwan courts, affecting the recognition and execution of arbitral awards and ultimately the choice of the parties to arbitral mechanism. Therefore, in order to further promote the circulation of arbitral awards it is necessary for both sides of the Strait to establish a bilateral or unilateral special arbitration recognition and execution system.