Construction Of The Lawsuit System Of The Third Party Discharging The Arbitral Award In Our Country

The arbitration is widely used to solve conflicts in social life,especially in business,because of its autonomy,secrecy and efficiency.Based on the characteristics of arbitration,the arbitration award usually involves only the parties concerned.But with the rapid development of economic society,the relationship between rights and obligations is increasingly complicated.The award of the arbitration will also affect the legitimate rights and interests of The third party who is not involved in the arbitration case.In recent years,our country is increasingly advocated by non-legal dispute settlement mechanism to resolve disputes.Arbitration is increasingly applied to the solution of the civil and commercial disputes.It also means that the risk of the arbitration award infringing upon the lawful rights and interests of the third party become greater.In this context,it is of great significance to study the protection of the interests of the third party who is not involved in the arbitration case.There are many cases where the arbitration award infringes the legitimate rights and interests of the third person.The causes of these results are various.At the legal system level,it is due to the limitations of arbitration system,and its advantage is easy to be used because of the characteristics of the arbitration.Also,it is because of the setting of the no-witness rule in civil litigation system and the fact that the determination of the civil ruling must not conflict with the fact that the effective referee has decided.Reflecting on real cases can help to identify problems and solve problems.In fact,it is feasible for our country to construct the suit of the third party discharging the arbitral award.It is not only a solid legal basis,but also has a broad realistic foundation.The theoretical basis is the theory of procedural guarantee and the finiteness of the judicial supervision.The realistic foundation includes the establishment of the third party revocation of the suit in our country,its being in line with China's traditional relief tradition,its meeting the needs of the third person' relief,and the little impact on the existing judicial relief system.Whether it is necessary to construct a new system depends on whether the existing system can effectively solve the problem.China's existing system cannot protect the benefits of the third person effectively.The third person does not qualify for repealing of the arbitration award,and he is not entitled to apply for a non-enforcement of the arbitration award.Also,an arbitration ruling that does not enter the enforcement procedure cannot initiate the third party action regarding objection to enforcement of an arbitral award.A separate prosecution shall not be confronted with the issue of conflict with the effective arbitration result.Moreover,a retrial prosecution must have evidence to prove that it is wrong and does not involve physical examination to achieve the purpose of relief.Even,the arbitration award is not the object of the third party's lawsuit.The main system of supervision of arbitration is to apply for revocation of the arbitration award and not to enforce the arbitration award.The difficulties for the third person to be included in the scope of the body of the two systems are hard to overcome.Thus,to modify the existing judicial supervision system to protect the third person's rights doesn't work.It is necessary to construct a new judicial relief system.The author believes that it should be the suit of the third party discharging the arbitration awards.The study on outside experience precedes reference.France is the first and the most perfect country in the world to protect the rights and interests of the third party who is not involved in the arbitration case.It has established a dissenting system of the third party in the proceedings,and has set up an independent objection system for the cancellation of the arbitration award.France's new the code of civil procedure stipulates that the third person to cancel the award of the arbitration system of the specific procedures and reason,in addition to the special features of the arbitration,applicable lawsuit system of objection of the third person to cancel decision.Macao of China also set up the system of litigation that determines the invalidation of the arbitration award.In France,the legislative experience in the system of the cancellation of the award is relatively mature,but it is too lenient in terms of subject qualification and time limit of litigation.The author thinks that it should be improved and perfected by considering the actual situation of our country.This paper is divided into six parts.In the first part,the concept of the lawsuit system of the third party discharging the arbitral award is firstly analyzed,and the concept of the third party and the position of the litigation system are clearly defined.The second part analyzes the situation and causes of the infringement of the legal rights and interests of the third party.In the third part,this paper discusses the feasibility of the establishment of the lawsuit system based on the theory and reality.The fourth part,After reflecting on the real cases,this paper further analyze the shortcomings of present judicial relief legislation of the third party,clarify the difficulties of modifying the main judicial relief systems,to fully demonstrate the necessity of constructing the suit of the third party discharging the arbitral award.The fifth part,this article inspects France and Macao's systems,summarizes its reference to China's establishment of the arbitration award system.The sixth part,the function of the suit of the third party discharging the arbitral award is clarified,and the structure,the object scope,trial,etc specific setting scheme is presented.