Dissertation
Dissertation > Political, legal > Legal > Chinese law > Procedural Law > Arbitration Law

Malicious Use of the Arbitration Process and Its Regulation

Author MaJinYe
Tutor WangZuXing
School Southwest University of Political Science
Course Civil Procedure Law
Keywords Malicious arbitration the extension of the arbitration proceedings and destruction arbitration fraud abuse of the right to judicial relief
CLC D925.7
Type Master's thesis
Year 2010
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Quick and easy, inexpensive is a major advantage of arbitration, however, the damage from all aspects of the arbitration proceedings constitutes pose a challenge. In order to better safeguard the legitimate rights and interests of the parties and to maintain the efficiency and quality of arbitration, we must work out and establish a set of mechanisms to prevent the practice of parties to arbitration in accordance with a variety of legitimate reasons to undermine the arbitration proceedings. However, malicious use of arbitration procedures in this article is the main body of a particular party for the arbitration proceedings, for other subjects, such as the arbitration body itself or the arbitrator, court, etc., malicious use of the arbitration proceedings or unlawful interference, this article does not give to study.This article total 30,000 words, is divided into four parts. The main contents of this article are as follows:Part I: summary of malicious use of the arbitration proceedings .This part mainly introduce the malicious use arbitral procedure meaning, the nature and the important constitutive requirements. I believe that a malicious use of the arbitration proceedings, referring to the arbitration a party or both parties conspire to use the loopholes in the system of arbitration or the inherent defect, the abuse of the arbitration proceedings, damages, damage the person other than involved in the case and interests of the relative side, to make their own benefit or impede each other’s benefit act.The author on basis of the arbitration contract nature, demonstrates the behavior of malicious use of the arbitration proceedings is a breach of contract; Arbitrates both sides to plot together against the third person of arbitration fraudulent practice is is a tort. For the parties to constitute a malicious use of the arbitration proceedings, the author analyzes the malicious use of the arbitration proceedings subject, object, subjective and objective four elements. The subject of malicious use of the arbitration proceedings is the parties of arbitration. The object of malicious use of the arbitration proceedings is that the parties to the arbitration procedure harm the due process; subjective bad faith, that is intentionally; objectively has implemented the harm arbitral procedure behavior.Part II: malicious use of the arbitration proceedings manifestations. Delay and undermine the arbitration procedures, arbitration of fraud, abuse of judicial remedies such as the right three kinds of malicious use of the arbitration proceedings are commenced discussion in this paty, and specifically including delay and undermine the arbitration proceedings, nature, performance and other content, the meaning of the arbitration fraud, definition and performance. This section presented our country to arbitrate in the practice the malicious use arbitral procedure three kind of manifestation, has highlighted the arbitration legislation insufficiency, solved our country malicious use of the arbitration proceedings for the later word to build the platform of establishing the measures of malicious use of the arbitration proceedings .Part III: malicious use of the arbitration process under the basis of jurisprudence. This section includes three aspects (the principle of party autonomy, efficiency and fairness of arbitration, legal equality and justice) discussed the use of arbitration proceedings against malicious legal basis for regulation. The meaning autonomous is limited, arbitrates litigant’s meaning autonomous not to be exceptional, it must receive the male foreword good vulgar and the imperative law limit. Behavior of malicious use of the arbitration proceedings with the principle of party autonomy runs counter to the legitimate exercise of the legal limit should be given a matter of course. From the simple terms of arbitration, the arbitral proceedings program attempts to circumvent the cumbersome and non-economic, the pursuit of efficiency, malicious use of the arbitration proceedings arising out of acts of arbitration complicated, damage to the other party and third-party interests, contrary to law, fairness and justice, reducing the settlement by arbitration the effectiveness of the dispute.Part IV: malicious use of the arbitration proceedings on the regulation of specific measures. I made that part of the arbitration proceedings against malicious use of the three kinds of regulatory safeguards: Power protection,to expand the powers of the arbitral tribunal; system of protection ,the introduction of third party arbitration system, The establishment of an arbitration notification system,The establishment of an arbitral award pre-open system, Improve the court system for setting aside an arbitral award,Abolition of non-enforcement of arbitral awards system. Relief protection, drawing on theories relating to civil proceedings the respondent lost the right to give a malicious use of the arbitration proceedings are to economic sanctions, to give a malicious use of the arbitration proceedings are to criminal sanctions

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