仲裁案外人对实体权利的程序救济

Procedural Remedies for Substantive Rights by Outsiders to Arbitration

由于商事交易具有复杂性,导致仲裁裁决可能对案外人实体权利造成侵犯。现行《仲裁法》、《民事诉讼法》并未对案外人提供充足的程序性救济。理论上学者提出了不同的路径。本文认为案外人通过另行起诉的途径救济与司法实务形成抵牾。同时对案外人的保护不应在仲裁程序中予以解决,即在仲裁制度中第三人以及第三人撤销仲裁制度不应存在。我国可借鉴仲裁案外人异议之诉制度,在仲裁执行依据产生后,案外人获知其权益受损后就可以提起异议之诉以阻断执行的开启或阻止当事人自觉履行;即使执行程序终结,仲裁当事人取得执行标的并无实体法依据,案外人仍可提起异议之诉,使其回复到不受侵害的圆满状态。此时案外人异议之诉本质上并不是撤销部分或全部仲裁裁决,而是剥夺该部分仲裁裁决的执行力以维护自身权益。

Due to the complexity of commercial transactions, arbitral awards may infringe on the substantive rights of outsiders. The current Arbitration Law and Civil Procedure Law do not provide sufficient procedural relief for outsiders. Theoretically, scholars have proposed different paths. This article argues that the relief of outsiders through separate litigation is in conflict with judicial practice. At the same time, the protection of outsiders should not be resolved in the arbitration procedure, that is, in the arbitration system, there should be no third party and the third party revocation arbitration system. China can learn from the system of objection litigation by outsiders in arbitration cases, after the basis for arbitration enforcement is generated, after the outsider learns that his rights and interests have been damaged, he can file an objection lawsuit to block the commencement of enforcement or prevent the parties from consciously performing;Even if the enforcement procedure is concluded and there is no substantive legal basis for the parties to the arbitration to obtain the subject matter of enforcement, the outsider may still file an opposition lawsuit to restore the party to a satisfactory state of infringement. In this case, the objection lawsuit of an outsider is not essentially to revoke part or all arbitral awards, but to deprive the enforcement of that part of the arbitral award in order to protect its own rights and interests.