试论商事公断制度的有限性

On the Limitation of the Commercial Arbitration System

1912年始由于司法独立原则的确定,加之晚清以来保商、振商思潮的影响,仿照德日的商事仲裁制度,商事公断制度因时而设。随着《商事公断章程》及《商事公断处办事细则》的颁布与实施,商事公断制度逐渐走向制度化与规范化。商事公断处自设立之始,立于仲裁地位,秉着调处息讼的原则,在理处商事纠纷方面发挥了积极的作用,但是由于公断处设置数量少、与商会理案权界限不清、没有被赋予最终裁判权等原因导致公断制度发挥的作用有限。通过探究该制度的有限性,进一步讨论移植借鉴时外来制度与本土现实间的互动关系。

At the beginning of 1912, due to the determination of the principle of judicial independence, coupled with the influence of the trend of protecting and promoting commerce since the late Qing Dynasty, the commercial arbitration system of Germany and Japan was established from time to time. With the promulgation and implementation of the Commercial Public Determinary Regulations and the Detailed Rules of the Commercial Public Determined Office, the commercial public judgment system has gradually moved towards institutionalization and standardization. Since its establishment, the Commercial Judgment Office has established itself in the status of arbitration. Adhering to the principle of mediation and litigation, it has played an active role in dealing with commercial disputes. However, due to the small number of public judgment offices, unclear boundaries with the case management rights of the Chamber of Commerce, and the failure to be given the final jurisdiction, the impartiality system by exploring the limitations of the system, we will further discuss the interaction between the external system and the local reality.