Withdrawal is not impossible. Finding the right idea will lead to success.
Published:
2020-03-15
Wen Yi Lin Jing
Introduction: Arbitration proceedings because of the implementation of the "one final" system, after the arbitral award, many parties think that the arbitral award is difficult to set aside, and then to apply for withdrawal of the award. The author thinks that the withdrawal is not impossible, and the key is to find the right direction. In fact, for such cases, as long as they meet one of the circumstances stipulated in Article 58 of the the People's Republic of China Arbitration Law (hereinafter referred to as the "Arbitration Law") and apply to the intermediate people's court where the arbitration commission is located for cancellation, the accepting court will allow the cancellation. The author has represented a number of withdrawal cases and successfully withdrew the ruling. The day before yesterday, he received another ruling for successful withdrawal. When the author accepted the entrustment of the case, there were still three days before the hearing. Because the parties did not understand the legal conditions for withdrawal, there were too many factual discussions on the withdrawal application in the book, resulting in confusion in content and logical order. After accepting the entrustment, the author, by understanding the basic facts of the case, selecting the application of the law, sorting out the ideas according to the conditions stipulated in Article 58 of the Arbitration Law, writing the agent's words, and fully discussing the agent's opinions in combination with the facts of the case to the collegial panel during the trial. In the end, the collegial panel adopted the author's proxy opinion and successfully withdrew the ruling.
Basic information of the case:
A company has developed a "treasure" social finance platform, which is operated by means of "one-way anonymous lending among acquaintances" to make a profit by providing intermediary services for lending transactions between users of the "treasure" platform, and registered users of the platform can reach a loan agreement between their friends. Wang mou and the lender Chen mou are both real-name registered users of "mou bao", and both signed the "user registration agreement" at the time of registration. the agreement stipulates: "notices with special attributes will be confirmed by sending mobile phone short messages to the registered mobile phone number by" mou bao ", and will be deemed to have been delivered once sent." at the same time, it is also agreed that "during the performance of this agreement, A company can modify this agreement according to the situation. Once the content of this agreement changes, a company will publish the latest agreement through" a treasure "and will not make individual notice to you. If you do not agree with the amendment made by a company to this agreement, you have the right to stop using the service of" a treasure. If you continue to use the 'One Treasue' service, you will be deemed to have accepted the amendments to this Agreement made by a company and shall be subject to the amended agreement." On July 28, 2016, Wang borrowed money from Chen through the "Mou Bao" platform. The "Mou Bao" platform showed that the two parties signed 4 standard format "Lending Agreements" with a loan amount of 80000 yuan. In fact, the 80000 yuan includes the loan 40000 yuan and the deposit of 40000 yuan. After deducting the interest of 12000 yuan in advance, the actual amount Wang got was 28000 yuan. And as of May 21, 2018, "A Treasure" shows that Wang should repay the total principal of 80000 yuan and the corresponding interest. The Lending Agreement signed by the two parties stipulates that the lender and a company may sign a creditor's rights transfer agreement, transfer all the creditor's rights enjoyed by the lender to the borrower to a company, and a company shall notify the borrower of the fact of the transfer of rights by means of flat-push mobile phone text messages in accordance with the agreement between the two parties. The agreement agreed to the jurisdiction of the court, after which Chen transferred his claim to Wang to a company, and then a company changed the dispute resolution method to "submit to a summary written hearing of an arbitration court" and claimed to have notified Wang by text message, but Wang did not receive the text message. Later, a company filed an application for arbitration in this case with an arbitration court, requesting Wang to return the interest and principal. According to Wang's personal address on the "treasure" platform, an arbitration court mailed the notice, decision, ruling and other relevant materials on May 25 and June 21, 2018. The above-mentioned mailed materials will be returned according to the receipt. An arbitration court hears in absentia and makes an award in support of a company's request for arbitration. Later, the company applied to the Intermediate People's Court of Wang's domicile for enforcement. Wang was included in the list of untrustworthy persons by the enforcement court and restricted high consumption. When he learned of this situation when he failed to buy train tickets on a business trip, he filed a lawsuit with the Intermediate People's Court of a certain city and requested to revoke the ruling.
Withdrawal of the Intermediate People's Court of a certain city:
The Intermediate People's Court of a certain city, after hearing the case and reporting it to the Higher People's Court of an autonomous region and the Supreme People's Court for review and approval, ruled that the arbitration award was revoked. The reasons are as follows:
This case is a case of judicial review of domestic arbitral awards, and the scope of judicial review of domestic arbitral awards by the people's court is based on the provisions of Article 58 of the Arbitration Law. This case belongs to the first item of the first paragraph of Article 58: there is no arbitration agreement. According to the provisions of the Arbitration Law and the judicial interpretation of the Arbitration Law, before and after the occurrence of a dispute, both parties to the contract may reach an arbitration agreement in the form of a contract, letter and data message, and whether the method of dispute resolution in this case has been changed to apply to the arbitration body for arbitration depends on whether the parties to the contract have reached an agreement on the change. The Loan Agreement involved in the case stipulates that both parties shall abide by the relevant provisions of the User Registration Agreement. Although the relevant provisions stipulate that the "One Treasure" platform will send short messages, in-station information and APP remote push information to the user's mobile phone number, the successful arrival of the sent electronic data will be deemed as successful delivery, but the User Registration Agreement stipulates the validity of the delivery method, there is no express agreement that the lender may unilaterally change the dispute resolution method. In this case, the "one treasure" platform will change the content of the dispute resolution method by sending system messages and mobile phone short messages to let Wang inform the objection within three days, otherwise it will be deemed to agree to change the dispute resolution method. This approach is not in line with the implied situation under the law, since the default in civil acts is a legal right and applies only in the circumstances provided for by the law. Therefore, in this case, Wang did not inform the objection, which cannot be regarded as Wang having acquiesced in the change of the dispute resolution method by both parties. Therefore, in view of the fact that Wang and Chen have clearly agreed in the Lending Agreement that the dispute resolution method in this case is to be submitted to the jurisdiction of the people's court, and there is no evidence to prove that the two parties have reached an agreement on the change of the dispute resolution method in this case to apply for arbitration, it should be confirmed that the dispute resolution method in this case has not been changed in accordance with the law. There is no legal and valid arbitration agreement in this case, and an arbitration court has no jurisdiction over the case. At the same time, there is no evidence in this case to prove that a company unilaterally notified the change of dispute resolution in line with the trading habits of both parties.
An arbitration court mailed the relevant materials such as the notice, decision, ruling and so on according to the personal address left by Wang on the "treasure" platform. the above-mentioned mailed materials were returned without being delivered.
To sum up, this case has the revocation of the arbitration award stipulated in the first and third paragraphs of Article 58 of the Arbitration Law. Wang's application for revocation of the arbitration award is established, and this court supports it.
The author believes that the main issues involved in this case:
1. How to determine whether there is an arbitration agreement between the parties
An arbitration agreement refers to the willingness of the parties to submit contractual disputes and other property rights disputes that have occurred or may occur between them to arbitration for settlement. The arbitration right of the arbitration tribunal comes from the authorization of the parties, and its basic form is the arbitration agreement, which is the basis for the arbitration institution to obtain jurisdiction. Specific to this case, when Wang signed the "Lending Agreement" with Chen, he agreed on court jurisdiction, and did not agree on arbitration, let alone an arbitration agreement, although the "Lending Agreement" stipulated that both parties should abide by the relevant provisions of the "User Registration Agreement. The User Registration Agreement stipulates that notices with exclusive attributes shall be sent by the "One Treasure" platform to the user's mobile phone number, and the electronic data sent shall be deemed to have been successfully delivered upon successful arrival. However, due to the agreement on the mode of delivery, there is no agreement on the way of dispute resolution to be changed to arbitration, and there is no arbitration agreement. Although the judicial interpretation stipulates that the arbitration agreement is valid for the transferee if the creditor's rights and debts are transferred in whole or in part, Wang did not have an arbitration agreement when signing the Lending Agreement with Chen. In this case, the premise of arbitration jurisdiction was not agreed through the transfer of creditor's rights. Moreover, Wang was not notified of the transfer of creditor's rights from Chen to a company, and the transfer of creditor's rights did not take effect to Wang, A company to an arbitration court is at best a unilateral statement.
Although the arbitration agreement can also be binding on third parties in certain special circumstances, the so-called expansion of the validity of the arbitration agreement. The expansion of the validity of the arbitration agreement includes the expansion of the binding subject of the arbitration agreement and the expansion and the written form of the arbitration agreement, but no matter what kind of expansion should be clearly stipulated by law, the implied behavior does not constitute the expansion in the legal sense.
2. on procedural violations
According to the the People's Republic of China Civil Procedure Law and the Supreme People's Court on the application<中华人民共和国民事诉法>The interpretation of the provisions of the "service, the delivery method generally has direct service, lien service, mail service, announcement service, electronic service five kinds. After consulting the arbitration file, an arbitration court delivered the notice, decision, award and other materials to Wang's address reserved on the "certain treasure" platform by "mail service" on May 25 and June 21, 2018, and was returned without signing. The author thinks that an arbitration court did not exhaust the service, but only adopted the method of mail service, and Wang did not receive it, which violated the legal procedure, deprived the rights of the arbitration respondent, and affected the respondent's participation in the arbitration.
The service system is an important link to ensure that the parties know the information and obtain favorable results. It is not only related to the smooth and effective progress of the arbitration procedure, but also related to the parties' arbitration rights and substantive rights. The core issue of service is whether the service is effective. If the service cannot be effectively served, the applicant shall apply to the people's court for cancellation, and the people's court shall rule to cancel the arbitration award.
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