主合同仲裁协议对担保合同效力扩张的问题研究

Research on the Expansion of the Effectiveness of the Main Contract Arbitration Agreement to the Guarantee Contract

随着“去法院中心主义”的改革,司法实践中仲裁机构的重要性越来越突出,通过仲裁分流案件的需求日益迫切,仲裁法修改在即,有必要构建更包容开放的仲裁制度。在担保制度中,主合同与从合同往往会出现约定管辖不一致的情形,当主合同约定仲裁管辖而从合同约定法院管辖或者未作约定时,主合同的仲裁协议能否扩张至担保合同是一个值得研究的问题。实践中同案不同判的现象时有发生,现行立法对仲裁协议效力扩张持否定态度,由此会产生债权人先起诉保证人的案件无法审理等一系列问题。解决上述问题需要做出原则规定、例外规定以及补充规则,在尊重当事人意思自治的基础上兼顾诉讼效率。

With the reform of“decourt centralism”,the importance of arbitration institutions has become more and more prominent in judicial practice,the demand for diverting cases through arbitration has become increasingly urgent,and the arbitration law is about to be revised,so it is necessary to build a more inclusive and open arbitration system.In the guarantee system,the agreed jurisdiction between the master contract and the accessory contract is often inconsistent.When the master contract stipulates arbitration jurisdiction and the accessory contract stipulates court jurisdiction or fails to do so,whether the arbitration agreement of the master contract can be extended to the guarantee contract is a problem worthy of study.In practice,the phenomenon of different judgments in the same case occurs from time to time,and the current legislation holds a negative attitude towards the expansion of the effectiveness of the arbitration agreement,which will lead to a series of problems such as the case that the creditor sued the guarantor first and could not be tried.To solve the above problems,we need to make principles,exceptions and supplementary rules,and give consideration to litigation efficiency on the basis of respecting the autonomy of the parties.