Study On The Perfection Of The System Of Non-execution Of Arbitral Award Applied By Outsiders

Article 244 of The Civil Procedure Law and Article 63 of the Arbitration Law of China stipulate that the arbitration award shall not be executed with the parties as the main body,without considering that the legitimate rights and interests of outsiders in the arbitration case may be damaged by the false arbitration award.2018 arbitration cases outsiders by the Supreme People’s Court of the people’s court to handle the arbitration case on provisions on some issues of the implementation of the applications will not be the implementation of the arbitral award subject qualification,it can not only counterproposal outsiders provides relief way,and to a certain extent,the parties to the arbitration conducted by malicious collusion between false arbitration has played a brake.As time goes by,the number of high-standard amount cases filed by outsiders to the court for non-execution of arbitration award gradually increases,but the application is easily rejected because outsiders cannot prove false arbitration or malicious arbitration between the parties.Through retrieval,this paper selects and analyzes three representative cases in judicial practice,from which it extracts the focus of disputes existing in the case of non-execution of arbitration award by outsiders.That is,the preconditions for an outsider to apply for not executing an arbitration award--the identification of false arbitration,the determination of the subject qualification of an outsider,the application of judicial review procedure,and the proof of an outsider’s malicious application for arbitration and false arbitration.The main reason for the above problems lies in that the theoretical level of the system has not formed a unified opinion on whether the outsider should be included in the application subject,the definition of the scope of the outsider in the existing system is not clear,and the application of the examination standard of procedural elements is not uniform in judicial practice.In addition,the current system is established by judicial interpretation,not reflected in the legislation,the hierarchy of the system needs to be upgraded;An outsider can only file an application in the execution stage,and a few words of the system cannot completely guarantee the rights and remedies of an outsider.In view of this,the way to break the situation is to set the threshold of relief properly and prevent the abuse of relief procedures;Scientific distribution of the burden of proof,to ensure that the two sides are evenly matched;Reasonable design of relevant time limit,to achieve efficient resolution of disputes;Guarantee the supply of the system,make up the missing link of the outsider’s right relief,so as to give full play to the practical value of the system,realize the balance of rights between the outsider and the original arbitration party,and achieve the benign interaction between justice and arbitration.On July 30,2021,the Ministry of Justice drafted the revised opinions of the arbitration Law,which designed two new relief channels for the outsiders of the arbitration case.However,there are some problems such as incomplete rules of the revocation procedure and lack of relief channels for the outsiders of the arbitration case,and the non-execution of the award procedure should not be deleted.The judicial review procedure should be designed reasonably,and the arbitration award system of non-execution should be retained and improved at the same time.