海南大学学报(社会科学版)

通过设立仲裁案外人准入制度以规制虚假仲裁现象，在我国理论界争论已久，而部分地方仲裁委员会似乎也对此进行了相应的规定。然而，仲裁案外人准入制度在理论基础上突破了仲裁的契约性与相对性原理，又混淆了仲裁与民事诉讼的本质区别。在制度效能上，仲裁案外人准入制度对规制虚假仲裁的效果存疑，与仲裁的程序构造难以匹配，与案外人的价值追求相龃龉，且可能产生新类型的虚假仲裁。因此，为了保护仲裁案外人的合法利益，应当坚持仲裁裁决效力相对性理论，限制适用案外人申请不予执行仲裁裁决制度，体系化地适用另行起诉、案外人执行异议与执行异议之诉的既有规则，并建构虚假仲裁的惩罚性赔偿制度与对仲裁程序的资料开示制度，从而进一步完善我国的仲裁法律体系。

The access system of arbitration outsiders is established to regulate the phenomena of false arbitrations, which has been debated in China's theoretical circles for a long time. Moreover, it seems that some local arbitration committees have also made corresponding provisions on this. However, the access system of arbitration outsiders, while breaking through the principle of contract and relativity of arbitration on the theoretical basis, confuses the essential differences between arbitration and civil litigation. In terms of institutional efficiency, doubts still exist in the effects that this access system regulates false arbitrations since it fails to match the procedural structure of arbitration, discords with the value pursuit of arbitration outsiders, and may lead to new types of false arbitrations. Therefore, in order to protect the legitimate interests of arbitration outsiders, it is a must to adhere to the relativity theory of the effectiveness of arbitral awards, and limit the application of the system that the outsiders apply for non-execution of arbitral awards. Meantime, while the existing rules of separate prosecution, objection to execution by outsiders and the lawsuits of objection to execution are systematically applied, it is suggested to construct the punitive compensation system of false arbitrations and the information disclosure system of arbitration procedures, so as to further improve the system of China's arbitration law.