仲裁裁决不予执行的救济程序和立法完善研究——兼论《民事诉讼法》第225条与第237条的适用和关系

发布时间：2018-11-12 09:37

【摘要】：仲裁裁决被依法裁定不予执行的,当事人可以达成新的仲裁协议再次申请仲裁,也可以另行起诉。但不予执行仲裁裁决的裁定确有错误的,当事人应当有权申请执行异议或者通过执行监督维护自己的合法权益。司法实践中存在一种误区,即法院以《民事诉讼法》第237条的规定为由剥夺当事人依据《民事诉讼法》第225条之规定申请执行异议的权利,亟待立法规范。仲裁裁决不予执行制度有其存在的独立价值,但需要立法重造,一是将之与仲裁裁决的撤销制度进行明确界分,二是协调好仲裁裁决不予执行救济与执行异议制度的关系,三是对不予执行裁定的异议进行立法完善,四是加强对不予执行裁定的执行监督,赋予当事人对不予执行裁定的上诉权、申请再审权。
[Abstract]:If an arbitral award is ruled not to be enforced according to law, the parties may enter into a new arbitration agreement and apply for arbitration again, or may sue separately. If, however, there is a mistake in the ruling not to enforce the arbitral award, the parties shall have the right to apply for an enforcement objection or to safeguard their legitimate rights and interests through enforcement supervision. There is a misunderstanding in judicial practice that the court deprives the litigants of the right to apply for execution of dissent according to Article 225 of the Civil procedure Law on the basis of the provisions of Article 237 of the Civil procedure Law, which urgently needs to be regulated by legislation. The system of non-enforcement of arbitration awards has its own independent value, but it needs to be reconstituted by legislation. First, it should be clearly separated from the system of annulment of arbitral awards, and the second is to coordinate the relationship between the relief of non-enforcement of arbitral awards and the system of dissenting enforcement of arbitral awards. The third is to perfect the legislation on the dissent of the non-execution ruling, the fourth is to strengthen the executive supervision of the non-execution ruling, endow the parties with the right of appeal against the non-execution ruling, and apply for the right of retrial.
【作者单位】：山东政法学院民商法学院;
【分类号】：D925.7

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