论仲裁协议的调查方式

大陆法系国家和地区一般将仲裁协议、诉讼费用担保和不起诉契约等情况作诉讼障碍,由被告主张妨诉抗辩开启调查程序,采辩论主义的调查方式。《仲裁法》本将仲裁协议作诉讼障碍而由当事人主张,但《民诉法》及《民诉法解释》却将"仲裁协议的不存在"作诉讼要件而采职权调查方式。中国立法和理论缺乏对诉讼障碍的规定和研究,导致《民诉法》及《民诉法解释》将诉讼要件和诉讼障碍混淆。《民诉法解释》对仲裁协议调查方式的规定,不当侵害当事人的纠纷解决方式选择权,更不恰当扩大法官诉讼要件中调查权。建构诉讼障碍制度,将仲裁协议作诉讼障碍而由当事人主张妨诉抗辩开启调查程序,采辩论主义调查方式,方是仲裁协议调查方式的完善方向。

The investigation method of arbitration agreement

Civil law countries and regions generally regard arbitration agreements, guarantees of litigation costs and non-litigation contracts as obstacles to litigation, the investigation procedure is initiated by the defendant''s plea in abatement, and the investigation methods under the debate doctrine are taken. The Arbitration Law originally proposed that arbitration agreements should be advocated by litigants as obstacles to litigation. However, the Civil Procedure Law and its interpretation made the non-existence of arbitration agreements a litigation element. The lack of regulation and research on litigation obstacles in China''s legislation and theoretical research leads to the confusion between litigation elements and litigation obstacles. The provisions of the Interpretation of Civil Procedure Law on the investigation methods of arbitration agreements improperly infringe upon the parties'' right to choose the way of dispute resolution, and even inappropriately expand the investigation power of the judges in litigation elements.To construct a system oflitigation obstacles and to take arbitration agreements as litigation obstacles, to initiate the investigation procedure by the defendant''s plea in abatement, and to take the investigation method under the debate doctrine are the perfection direction of investigation method of arbitration agreement.