The similarities and differences between commercial arbitration and litigation purposes and procedures (1) - one of the series of lectures on litigation and arbitration
As the modern rule of law in the field of private rights in the settlement of commercial disputes, commercial arbitration and litigation are playing an increasingly important role. Judging from the current effective provisions of the Civil Code, the Arbitration Law and the Civil Procedure Law and the experience of arbitration litigation,There are many similarities and differences between the purposes and procedures of commercial arbitration and litigation, as described below.
First, dispute resolution methods in the field of private rights
ZHI HENG·GUIYANG
1. Relevant legal provisions
Article 233 of the Civil Code: Where a real right has been infringed, the obligee may resolve the matter by means of conciliation, mediation, arbitration, or litigation.
Article 1 of the Arbitration Law: This Law is formulated to ensure fair and timely arbitration of economic disputes, protect the legitimate rights and interests of the parties, and ensure the healthy development of the socialist market economy.
Article 1 of the Civil Procedure Law: The Civil Procedure Law of the People's Republic of China is formulated on the basis of the Constitution and in light of the experience and actual conditions of civil trial work in our country. Article 2: The tasks of the Civil Procedure Law of the People's Republic of China are to protect the parties in exercising their litigation rights, ensure that the people's courts find out the facts, distinguish right from wrong, correctly apply the law, try civil cases in a timely manner, confirm the relationship between civil rights and obligations, sanction civil violations, protect the legitimate rights and interests of the parties, educate citizens to consciously abide by the law, maintain social and economic order, and ensure the smooth progress of socialist construction.
2. Interpretation of dispute resolution in the field of private rights
Law comes from experience. Judging from the above legal provisions on civil dispute resolution,Conciliation and mediation are dispute resolution methods in the absence of state coercive interventionThe main function of self-regulation in civil social relations is to effectively resolve disputes over rights and interests.Arbitration endows the ruling with the role of state coercion with effective legal effectHowever, in the procedural and private fields, the principle of party autonomy is still respected, and the characteristics of freedom of procedural rights are still endowed.The goal of the litigation is to "try civil cases in a timely manner and confirm the relationship between civil rights and obligations."In the field of civil dispute resolution, the extension of state coercive power from adjudication results to procedural areas is the last line of defense for resolving civil disputes.
The similarities and differences between commercial arbitration and litigation
ZHI HENG·GUIYANG
From the perspective of legislative provisions and original intentions, commercial arbitration and litigation have the following similarities and differences:
1. The same purpose:
① Protect the legitimate rights and interests of the parties;
Arbitration of economic disputes in a fair and timely manner (timely hearing of civil cases)
③ Ensure the healthy development of the socialist market economy (maintain social and economic order).
④ Give the result legal effect and state enforcement power.
2. Differences in purpose
litigation | Arbitration |
"Protect the parties to exercise their litigation rights" and strengthen the intervention and effectiveness of state public power; | Weakening the influence of the state's public power, respecting the parties' choices and compliance in arbitration procedures, such as "final ruling", free choice of arbitration institutions, arbitration rules, arbitrators, etc. |
"Ensure that the people's courts find out the facts and distinguish right from wrong", "educate citizens to consciously abide by the law", and pay attention to the fairness of the rule of law and educational guidance; | The key is to respect the parties' free space, adjust their interests, and weaken value guidance. |
"Sanctions for civil violations", strengthening the public authority of procedures and the liability for procedural violations. | The key is to respect the procedural freedom of the parties, weaken the procedural responsibility, and attribute the procedural responsibility to the ruling. |
III. Conclusion
ZHI HENG·GUIYANG
Commercial arbitration and litigation are not opposites, but complementary dispute resolution toolsThe former takes "autonomy" as the base color, and the latter takes "public power" as the support to jointly build a legal network in the field of private rightsCommercial subjects can rationally choose the most suitable dispute ********** path according to the nature of the dispute, the cooperative relationship and the procedural needs, so that the law can truly become the moat river and the gate of harmony for the ******************** and interests and the sharing of benefits.
Lawyer Zhou Yongsong will continue to hold a series of lectures on "Arbitration and Litigation" in the near future, and continue to publish lecture courseware, so stay tuned.
Author · Introduction
Zhou Yongsong
Zhiheng Guiyang Equity Senior Partner
Director of Zhiheng Guiyang Management Committee
Zhiheng Guiyang full-time lawyer
Personal profile:Lawyer Zhou Yongsong is currently a senior equity partner and director of the management committee of Guangdong Zhiheng (Guiyang) Branch, with 30 years of experience in judicial, arbitration and lawyer practice. He served in the Zunyi Intermediate Court for 15 years in his early years, serving as the head of the Third Civil Court (Intellectual Property Court), and was awarded the "Excellent Judge of Guizhou Province". He is deeply involved in civil and commercial affairs and intellectual property trials.
After 5 years in charge of the Zunyi Arbitration Commission, he accumulated experience in multi-dispute resolution. Since 2010, he has practiced for 15 years and has served as a lawyer in many law firms, integrating the accumulation of the rule of law in Southwest China with the cutting-edge vision of the Guangdong-Hong Kong-Macao Greater Bay Area. As an arbitrator appointed by Zhuhai International Arbitration Court, Guiyang Arbitration Commission and Zunyi Arbitration Commission, he focuses on the front line of dispute resolution.
Legal advisory services cover government and enterprises, including Guizhou Moutai Winery, Shenzhen Zhangzhiyun Liquor Industry, Guizhou (Heping) Economic Development Zone Management Committee, Bozhou District Government, etc.
Business direction:Focusing on civil and commercial dispute resolution, perennial (special project) legal counsel, intellectual property, with both theoretical depth and practical experience, good at handling major commercial disputes, providing forward-looking solutions for government park planning and corporate compliance.
Classic case:
China Guizhou Moutai Distillery (Group) Co., Ltd. and Guizhou Southern Huitong Shihua Micro Hard Disk Co., Ltd. Administrator's investment dispute lawsuit (subject amount: 300 million yuan)
Guizhou Jinzedi Green Product Development Co., Ltd. and its subsidiaries in several loan contract dispute lawsuits (subject amount: 230 million yuan)
Arbitration case of a construction contract dispute between a joint stock company of a group in Shenzhen and a construction company of a certain bureau (subject amount: 170 million yuan)
Jinzhan Liquor Cooperation Project between Maotai Town, Renhuai City, Guizhou Province and Hangzhou Wahaha Hongzhen Investment Co., Ltd