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What's the difference between arbitration and court proceedings? How to do it specifically?
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Arbitration includes labor arbitration and commercial arbitration. Labor arbitration is the pre-procedure of labor dispute cases, so we still mainly talk about commercial arbitration.
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Generally speaking, arbitration and litigation are legal ways to resolve disputes, and the obtained arbitration award, conciliation statement or court judgment, ruling and conciliation statement are legally binding and can be applied for compulsory execution.
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However, not all cases fall within the scope of arbitration, such as disputes over marriage, adoption, guardianship, upbringing and inheritance. Administrative disputes that should be handled by administrative organs according to law cannot be arbitrated and can only be resolved through court proceedings.
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Another problem is the procedure. Arbitration is final and there is no way to appeal arbitration. The lawsuit is the final instance of the second instance. If you are dissatisfied with the judgment of the first instance, you can appeal.
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Of course, there are fees for arbitration and litigation, and the fees for accepting cases and handling cases charged by arbitration are higher than the legal fees.
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Arbitration refers to a system and way of dispute settlement in which both parties to a dispute reach an agreement voluntarily, submit the dispute to a specialized agency for trial, and make an award that is binding on all parties to the dispute. Disputes arbitrated by arbitration institutions include contract disputes and other property rights disputes. The parties applying for arbitration shall meet the following conditions: there is an arbitration agreement; There are specific arbitration requests, facts and reasons; It falls within the scope of acceptance of the Arbitration Commission. According to the principle of autonomy of the parties, the parties can choose to apply to an arbitration institution for arbitration, or they can choose to bring a lawsuit to the court to solve the disputes between the parties. But in some cases, the right to choose to resolve disputes is not in the hands of the parties.
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In a labor dispute case, the parties may apply to the labor dispute mediation committee of the unit for mediation, or directly to the labor dispute arbitration committee for arbitration. If you are not satisfied with the arbitration award, you can bring a lawsuit to the court within 15 days from the date of receiving the arbitration award. Labor dispute arbitration is a necessary procedure in litigation.
If the arbitration institution selected by the parties in the arbitration clause or agreement does not exist, or the matters decided are beyond the authority of the arbitration institution, the court has the right to accept the prosecution of one party according to law.
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If the parties provide evidence to prove that the award has one of the following circumstances, they may apply to the intermediate court where the arbitration commission is located for cancellation of the award: there is no arbitration agreement; The matters decided are not within the scope of the arbitration agreement or the arbitration commission has no right to arbitrate; The composition of the arbitration tribunal or the arbitration procedure violates legal procedures; The evidence on which the ruling is based is forged; The other party conceals enough evidence to affect judicial justice; The arbitrator asks for bribes, engages in malpractices for personal gain or perverts the law when arbitrating a case.
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Having said that, many people still don't understand the difference between arbitration and litigation, so what's the difference?
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1, different starting conditions. The premise of arbitration is that both parties reach an arbitration agreement and voluntarily submit the dispute to the arbitration organ. Civil litigation does not require negotiation between the two parties. As long as one party's lawsuit meets the statutory conditions, the court will accept it. If you choose arbitration, you can't go to court.
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2. Different institutions. The Arbitration Commission is organized by the people's government and relevant departments (Legislative Affairs Bureau) and the Chamber of Commerce. Its supervisory body is the China Arbitration Association, and the arbitrators are mostly lawyers and government officials. The court institution is the judicial institution of national laws.
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3. The rights of the parties are different. Arbitration means that the parties have the right to choose arbitrators. Judges in civil proceedings shall be decided by the people's courts.
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4. Different procedures. Arbitration shall be subject to the one-award final system. The parties may not apply for arbitration again for the same fact, nor may they bring a lawsuit or appeal to the people's court again. Civil litigation can go through three stages: first trial, second trial and retrial. Moreover, arbitration is generally not heard in public, which is conducive to keeping the business secrets of the parties. Civil proceedings must be heard in public, and there are no special circumstances.
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5. The charges are different. The arbitration fee is not stipulated to be reduced, deferred or exempted, but it is stipulated by the court. Arbitration fee is higher than lawyer's fee.
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Specifically, litigation is all the activities carried out by the judicial organs and the parties to a case with the cooperation of other litigation participants to solve the case according to law. Arbitration is that both parties invite a third party with no direct interest and certain authority to arbitrate the dispute between them. China's Arbitration Law came into effect on September 1995, which stipulated in principle and procedure to ensure the fairness of arbitration. Compared with the civil litigation in China, it has its own advantages and characteristics.
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First of all, the arbitration agreement determines the only arbitration tribunal in this case. The arbitration agreement includes the arbitration clause in the contract and the arbitration agreement reached in other written forms before or after the dispute occurs. It is not only binding on the parties, but also binding on distinguishing the jurisdiction of the court and the arbitration commission. This shows that arbitration and litigation are based on different cases, and the scope and jurisdiction of cases are also different.
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Secondly, the law plays a supervisory role in the quality of arbitration awards, which is very conducive to protecting the legitimate rights and interests of the parties involved in arbitration cases, including the losing party.
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As we all know, the supervision of the quality of arbitral awards in China has been handed over to the people's courts. Article 58 of China's Arbitration Law stipulates that if the parties provide evidence to prove that the award has one of the following circumstances, they may apply to the intermediate people's court where the arbitration commission is located for cancellation of the award; (1) There is no arbitration agreement; (two) the matters decided are not within the scope of the arbitration agreement or the arbitration commission has no right to arbitrate; (3) The composition of the arbitration tribunal or the arbitration procedure violates legal procedures; (4) The evidence on which the award is based is forged; (5) The other party has concealed enough evidence to affect judicial justice; (six) the arbitrator in the arbitration case, bribery, favoritism or pervert the law. The people's court shall form a collegial panel to examine and verify, and if it considers that the ruling is under any of the circumstances specified in the preceding paragraph, it shall make a ruling to revoke it. If the people's court finds that the ruling violates the public interest, it shall make a ruling to cancel it.
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Third, the trial and award of arbitration should pay full attention to the evidence of both parties. Generally speaking, whether it is arbitration or litigation, obtaining evidence should be a serious and scientific issue. As we know, evidence should be presented in court, and one party's evidence can be cross-examined by the other party. In this way, the arbitral tribunal and the court have the same right to obtain evidence. The problem is that one party fails to appear in court without justifiable reasons or leaves the court halfway without the permission of the arbitration tribunal, thus losing effective cross-examination evidence. This is also a practical problem encountered in litigation. Fortunately, arbitration law pays more attention to the arbitration tribunal's own collection of evidence.
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(1) Arbitration refers to a dispute settlement system and method in which two parties to a dispute reach an agreement on a voluntary basis, and the dispute is submitted to a third party who is not a judicial institution for trial, and the third party makes an award that is binding on all parties to the dispute;
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Arbitration is a kind of dispute resolution, which is contractual, autonomous, folk and quasi-judicial.
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(3) Arbitration is final and the cost is higher than litigation; However, enforcement still needs to apply to the people's court.
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(1) Litigation refers to the special legal activities of the national judicial organs to solve disputes and handle cases according to legal procedures, and its role is to solve conflicts of interest in the social system;
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(2) China implements the trial-level system with the principle of second trial and the exception of first trial. If a party refuses to accept the judgment or ruling of first instance, he may appeal to a higher court. If the parties consider that the legally effective judgment or ruling is wrong, they may apply for a retrial;
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(3) The lawsuit must be brought in a court with jurisdiction.
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Arbitration and court proceedings are both dispute settlement methods.
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It's just that arbitration is a choice made by the parties to the dispute settlement before or after the dispute occurs. Only when all parties have chosen the arbitration dispute settlement method and the arbitration institution has made a clear dispute settlement method, the corresponding arbitration institution will have jurisdiction over the dispute.
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Of course, labor dispute arbitration is clearly stipulated by law, and the parties cannot negotiate jurisdiction.
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Court litigation is a kind of dispute settlement method in which the parties can bring a lawsuit directly to the court with jurisdiction according to the provisions of the Civil Procedure Law when there is no arbitration agreement or the agreement is invalid.
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There are many differences between arbitration and courts:
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Courts are judicial organs, and arbitration is a public institution in China.
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The judgment made by the court is a two-instance final judgment system. Arbitration is final.
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The judges of the court are all full-time judges, and the judges of an arbitration institution are arbitrators, all of whom are part-time.
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The procedural law of the court in handling civil and commercial cases is the civil procedure law. The arbitration institution shall abide by the arbitration rules when trying civil and commercial cases.
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The court's judgment is based on laws and customs. Arbitration can make an award according to rationality.
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The court can directly handle property preservation, and the arbitration institution cannot handle property preservation.
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I don't know if you are asking about labor arbitration or commercial arbitration. Let me answer the difference between commercial arbitration and litigation:
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1. They have different organizations to deal with disputes.
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Arbitration shall be accepted by the local arbitration commission, and its supervision institution shall be China Arbitration Association; The lawsuit is accepted by the court, and the supervision institution is the procuratorate.
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Once both parties agree to choose arbitration to solve the contract dispute, they can't go to court for litigation.
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3. Arbitration follows the principle of voluntariness, while litigation is independent of the other party's will.
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4. Arbitration can only accept contract disputes and other property disputes between citizens, legal persons and other organizations with equal subjects, while courts can accept all kinds of disputes.
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5. The procedures are different. Arbitration is final. When applying for revocation, the court will generally stop the entity review. If there are obvious errors in the procedure, it can be cancelled. If the lawsuit refuses to accept the first instance, you can also appeal, and if you refuse to accept the second instance, you can apply for a retrial within two years.
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6. The arbitration tribunal generally does not hear cases in public, and the award is not public; The people's courts shall practice the principle of public hearing except for cases that are not tried in public according to law.
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7. The charges are different.
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Litigation fees can be reduced, postponed or exempted under certain circumstances, while arbitration fees are not stipulated accordingly.
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The difference between arbitration and litigation lies in:
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First, court proceedings are subject to regional jurisdiction and hierarchical jurisdiction, and arbitration is subject to agreement jurisdiction, which fully reflects the voluntary nature of arbitration activities.
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Second, litigants can't choose judges, nor can they choose courts beyond their jurisdiction. The parties to arbitration activities can choose arbitration institutions. You can also choose an arbitrator.
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Third, arbitration should be held in private, unless the parties request a public hearing, and the proceedings are different, it should be held in public.
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Fourth, if a party refuses to accept the court's decision, it can appeal, but the arbitration shall not appeal, and the arbitration shall be terminated.
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There are mainly the following differences: different jurisdiction methods, different composition methods, different trial methods and different systems!
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Rufa Technology Rufajun believes that:
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Although the arbitral award has the same legal effect as the effective judgment of the people's court, there are significant differences between arbitration and litigation:
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1. The Arbitration Commission is a non-governmental organization.
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The people's courts are the judicial organs of the state and exercise judicial power independently according to law. As a non-governmental organization, the Arbitration Commission is neither a judicial organ nor a judicial organ. The non-governmental nature of arbitration institutions is the guarantee of their independence and impartiality.
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2. Arbitration is not limited by rank and geographical jurisdiction.
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It is compulsory for the people's courts to exercise territorial jurisdiction and hierarchical jurisdiction in handling cases according to law. Arbitration respects the wishes of the parties and adopts agreed jurisdiction. If the parties reach an arbitration agreement, the people's court may no longer accept it.
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3. Arbitration adopts the system of one award and final decision.
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In handling civil cases, the people's courts practice the system of final adjudication by two trials. If a party refuses to accept the judgment of first instance, he may appeal to the people's court at the next higher level. The arbitration shall be final and the award shall have legal effect from the date of making.
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Arbitration is only applicable to contract and property disputes.
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The scope of court cases includes not only civil cases, but also criminal cases and administrative cases. The Arbitration Commission can only accept contract disputes and other property rights disputes between citizens, legal persons and other organizations with equal subjects.
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5. Arbitration is more flexible and free.
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In the process of litigation, the parties should strictly follow the legal procedures, and the parties cannot choose the court or judge. For arbitration, the parties can freely choose the arbitration institution, arbitration rules, arbitrators, arbitration procedures, arbitration place, language used and applicable law.
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In addition to the above, arbitration and litigation are also very different in court trial, supervision procedures and charging standards.