China: 仲裁案件审理中如何归纳与厘定争议焦点问题?

Last Updated: 29 November 2019
Article by Yan Shujing
Most Read Contributor in China, November 2019

仲裁案件审理中如何归纳与厘定争议焦点问题? ——兼谈裁决书对争议焦点问题的查明认定与说理

在民商事纠纷中,无论当事人约定采取诉讼方式或仲裁方式解决争议,对法庭或仲裁庭而言,最主要的工作在于认定事实与适用法律。因此法庭或仲裁庭必须调查证据,发现法律事实,判断哪些事实与法律适用有关,而哪些无关。在法庭或仲裁庭进行查明、认定事实与法律适用活动中,如何归纳与厘定争议焦点是相当重要的问题。

本文试以仲裁案件审理为例,就仲裁庭如何归纳与厘定争议焦点问题,发表浅见。

一、什么是争议焦点?

有法官提出:所谓争议焦点,简单地说就是纠纷的核心,矛盾的交锋点,案件双方当事人争执的问题所在,在形式上是由法官归纳、并经当事人确认的争点,是引领案件审理、纠纷解决的主线和枢纽,也是体现法官熟悉案情的程度,把握法律与案件联系的能力的一个突出标志。 1争议焦点的重要性在于,"法官依照争议焦点的指引驾驭庭审,而当事人各方的诉辩表现、各自对争议焦点的理解及由此选择的攻防基础、采取的应变策略,均有可能影响裁判结果。"

笔者认为:从文义角度,争议焦点包含两层含义,一是有争议,即属于当事人之间存在的争议,无争议的事项不可能是争议焦点;二是重要,即属于焦点问题,意味着不解决焦点问题则无法完成争议解决。

争议事项不等同于争议焦点,因此查明争议事项与厘定争议焦点亦是两个不同概念。笔者认为,厘定争议焦点的前提,是对案件事实和争议事项进行力争完整的把握。

二、如何查明争议事项? 2

我国仲裁法第五十四条规定:"裁决书应当写明仲裁请求、争议事实、裁决理由、裁决结果、仲裁费用的负担和裁决日期。当事人协议不愿写明争议事实和裁决理由的,可以不写......"因此,争议事实是仲裁程序中需查明的事实。

依仲裁案件的审理程序,申请人首先提出仲裁请求并说明所依据的事实与理由,被申请人作出答辩并说明其所依据的事实与理由,再经双方当事人分别举证与质证,及进行辩论,大致可呈现双方所主张的案件事实与争议事实。

由于案件当事人通常未经法律专业训练,不免存在对专业问题的认知局限,或有时基于趋利避害的考虑,尤其在未聘请专业律师的情况下,当事人所作陈述及举证、质证、辩论过程中呈现的事实与完整的案件事实之间,可能存在相当程度的信息缺口。因此,仲裁庭一般会向当事人进行询问调查,意在尽量消除书证、当事人陈述与完整案件事实之间的模糊地带及信息缺口。

调查案件事实与争议事实可采取历史的方法。所谓历史方法,是指就案件事实发生的过程,依序了解相关事实(及分析其法律关系)。 3

笔者在处理仲裁案件中,通常会根据案情整理大事记。根据时序先后,由申请人所主张的法律关系出发,以当事人主张适用的法律规范所规定的要件事实为线索,构建"应存在"的案件事实框架(问题框架);继而由"应存在"的案件事实框架,听取当事人陈述、查阅当事人证据及向当事人作出询问,以获得较为完整的案情说明。与此同时,当事人之间的争议事实也会获得较为完整的呈现。

当事人对案件性质的认识并不总是一致的。在申请人与被申请人分别发表意见、举证、质证与辩论的过程中,如一方当事人主张案件属于不同的法律关系性质,则仲裁庭亦可依循新提出的法律性质,问出当事人主张适用的相应法律规范,梳理对应的要件事实框架,再对比当事人的陈述、所交证据与对仲裁庭的回答,继续探寻案件事实及梳理当事人之间的争议事实。如此循环往复。

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