间接代理制度对仲裁条款的适用
徐涤宇间接代理制度对仲裁条款的适用
Application of Indirect Agency Systemto Arbitration Clause
期刊名称：《法学研究》
期刊年份：
作者：徐涤宇
单位：湖南大学法学院
中文关键词：合同法第402条;合同法第403条;间接代理;仲裁条款
英文关键词：402 ofC ontract Law;403 of Contract Law;arbitration clause;knowledge transition
中文摘要：
正确解释合同法第402条和第403条对仲裁条款具有的规范效力，在仲裁实践中具有重大意义。但就涉及有仲裁条款的案型而言，作为归属规范的合同法第402条，出现违反法律计划之不圆满性，属于规整漏洞，应以目的性扩张方法填补；合同法第403条对间接代理中的仲裁条款无适用余地，但可运用合理利益原则创设仲裁条款自动移转规则，此非合同法第403条之解释和适用的结果，而是通过仲裁条款的解释对所涉当事人意思的拟制。中国民法的知识形态应转向以解释论为主导的路径，即以现行法、判例和教义学语句为对象展开法律论证，在法律的解释和适用以及法教义学的形成中促成法的成长。
英文摘要：
Can 402 and 403 of Chinese Contract Law be applied to arbitration clause? The answer is significant in arbitration practices. According to these articles, a contract entered by an agency in his own name can bind directly the principal and the third party if other conditions are satisfied. Then can an arbitration clause entered by an agency in his own name also bind directly the principal and the third party, if other conditions are satisfied?Arbitration clause is the selection by contract parties about how to settle disputes, and it is independent from the contract itself. That is to say, the arbitration clause itself is not a part of the “contract” mentioned by 402 and 403. According to this interpretation, an arbitration clause cannot bind directly the principal and the third party. However, as to 402, such interpretation and its conclusion violate the legislative intention, and are against the legislative plan. So there exists a regulative loophole, which should be filled by the teleological expansion of 402. Then the arbitration clause, like the “contract” mentioned by 402, can bind directly the principal and the third party, if other conditions are satisfied.As to 403, to the contrary, there exists no loophole, for it is not against the legislative plan. Actually, 403 regulates a special type of contract right assignment and liability undertaking. The arbitration practices have established that, when the right or obligation of a contract is transferred, the arbitration clause is transferred accordingly. This is not the result of interpretation of 403, but a fiction of the intention of the parties involved, and should follow the principle of fair and reasonable expectation.The ultimate purpose of this paper is trying to find out the dimension of knowledge transition in civil law research in China. Under the guidance of legislative constructivism, Chinese civil law system has been approximately established, and the legislatism as the main argumentation model in research has been formed. But owing to the limits of legislative constructivism and the need to justify judicial decisions, the knowledge pattern of Chinese civil law should be changed. Legal argumentation should take the existing law, guiding cases and dogmatic statement of jurisprudence as objects. Only in the process of interpretation and application of law as well as the formation of legal dogmatic, can law grow. Key words: 402 of Contract Law, 403 of Contract Law, arbitration clause, knowledge transition
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