Not really.
Split into situations.
The relationship between arbitration and litigation is that arbitration is a prelude to litigation.
Contractual dispute resolution, arbitration and court can only choose one.
Arbitration is good or court prosecution is good
Private loan debt is the court prosecution or to the arbitration commission is not good. If the two sides did not agree in advance on the loan or loan contract, you can only go to court, not to the arbitration committee to arbitration. If the two sides have agreed to arbitration, can not go to court, only to arbitration.
Legal analysis
Private lending and borrowing, refers to the natural person, legal person, other organizations and each other to carry out the act of financing. The creditor has the right to sue in the People's Court of the defendant's domicile for the repayment of the money owed. The statute of limitations for debt disputes is three years. If a repayment period is agreed upon, the statute of limitations is three years from the date of expiration of the repayment period. If no repayment period is agreed upon, a grace period should be given to the other party, and the statute of limitations is three years from the date of the expiration of the grace period, and the right to win the lawsuit will be lost in the process of the lawsuit after the expiration of the three-year period, so it is necessary to pay attention to the statute of limitations. If the two sides did not agree in advance on the loan note or loan contract, you can only go to court, not to the arbitration committee to arbitration. If the parties have agreed to arbitration, can not go to court, only to arbitration. According to relevant laws and regulations, the parties to use arbitration to resolve disputes, should follow the principle of mutual voluntariness, to reach an arbitration agreement. There is no arbitration agreement, one party applies for arbitration, the arbitration committee shall not accept. If the parties to reach an arbitration agreement, a party to the people's court, the people's court shall not be accepted, but the arbitration agreement is invalid.
Legal basis
The Chinese people's **** and the State Arbitration Law
Article 4 of the parties to the use of arbitration to resolve disputes, should be voluntary, reached an arbitration agreement. Without an arbitration agreement, one party applies for arbitration, the arbitration commission shall not accept.
Article 5 of the parties to reach an arbitration agreement, a party to the people's court, the people's court shall not accept, but the arbitration agreement is invalid.
"The Chinese people's *** and national civil procedure law" article 120 shall be submitted to the people's court, and in accordance with the number of copies of the defendant. Writing a statement of claim is difficult, you can sue orally, the people's court shall be recorded in the transcript, and inform the other party.
Contracts agree on both arbitration and litigation
Arbitration and litigation have their own characteristics, and people may choose different dispute resolution methods based on different purposes.
What if both arbitration and litigation are agreed in the contract?
For example, the contract has the following ambiguous clause:
"Disputes arising out of this agreement shall be resolved by friendly negotiation; if the negotiation fails to be resolved, the dispute shall be submitted to the Chengdu Arbitration Commission for arbitration or to the People's Court of the place where the agreement is signed for litigation."
This clause is out, the dispute is really negotiation is not good, you guys give them ideas, in the end the arbitration or litigation?
I believe that the less understanding of the law of the partners will give a "thoughtful and decent, but actually all rely on guessing" answer - either arbitration, or litigation, or who first caught the case counts who.
And for those who know the law, there are two main answers, according to random interviews with Pitiless.
Answer 1:
The above clause is invalid and can neither be submitted to the Chengdu Arbitration Commission for arbitration nor to the People's Court of the place of signing for litigation.
According to the general rule, it should be submitted to the People's Court of the place where the defendant is located or the place where the contract is performed.
Answer 2:
The above clauses are invalid in relation to arbitration and valid in relation to litigation. You cannot go to Chengdu Arbitration Commission for arbitration, but you can go to the people's court where the agreement is signed to file a lawsuit.
The above two answers, not quite understand the law guys, with your wisdom to look at it, did you see what **** sex?
You you, that's you, give your answer.
"The ****iness should be all about not being able to arbitrate."
Yeah, here's the point.
Both the agreement to arbitrate and the agreement to litigate, the agreement to arbitrate is invalid and cannot be submitted to arbitration for sure.
Based on the Supreme People's Court
"The parties agreed that the dispute can be applied to the arbitration institution for arbitration can also be sued to the people's court, the arbitration agreement is invalid."
So which is the most accurate answer, answer 1 or answer 2?
First look at the provisions
"Supreme People's Court
Secondly, look at the cases
I retrieved a large number of cases in the last year, including but not limited to:
Chengdu Kairiel Environmental Protection Equipment Co., Ltd, Shandong Meiyada Membrane Structure Engineering Co., Ltd. contract dispute jurisdiction of the civil ruling, Case No.: Chuan 01 Minjue final 827.
Jiangmen city Jiang magnetic electric enterprise limited company, yunnan copper limited company purchase and sale contract dispute second instance civil ruling, case number: yunmin jurisdiction final 63.
Chen Wei, Shenzhen Xiande Zhengrui Investment Enterprise Partnership Agreement Dispute Second Instance Civil Ruling, Case No.: 粤03民辖终2052号.
The view of the case can be summarized as follows:
Both arbitration and litigation are agreed upon, the arbitration agreement is invalid and the litigation clause is valid.
As long as the litigation clause is clear and in accordance with the Code of Civil Procedure
So, answer two is more secure.
But we can't rule out the specific case in the process of encountering "the Court believes" in favor of the answer to the first, then we can only try to communicate to persuade, the problem should not be too big.
Of course, the best way to circumvent the "Court that" support the answer to the best way is not to agree both arbitration and litigation terms.
Which is better, arbitration or litigation
Arbitration is better.
1. Arbitration is a quick way to resolve disputes and is generally less expensive, whereas settlement by litigation is slower and often expensive.
2, the dispute occurred in the transaction to seek a fair and authoritative person to coordinate the settlement, than through litigation on the feelings between the parties to have less impact, in favor of the parties to continue the transaction in the future.
3, arbitration is generally conducted in camera, which is conducive to the preservation of commercial secrets of the parties, but also conducive to the maintenance of the parties to the commercial reputation of the litigation is difficult to do so.
4, dispute resolution through arbitration, the parties can voluntarily choose the arbitration institution, arbitrators, and even choose the arbitration program, etc., and the number of members of the tribunal and the candidate, the litigants have no right to ask. Therefore, in this regard the parties have greater autonomy and more convenient.
Legal basis
The Chinese people's **** and the National Civil Procedure Law, Article 123, the people's court shall guarantee the right to sue in accordance with the provisions of the law. Prosecutions that comply with article 119 of this Law must be accepted. Where the conditions for prosecution are met, the case shall be filed within seven days and the parties shall be notified; where the conditions for prosecution are not met, a ruling shall be made within seven days that the case is not admissible; where the plaintiff is not satisfied with the ruling, he or she may lodge an appeal.
What is the situation of arbitration and litigation
The relationship between arbitration and litigation is that arbitration is a prelude to litigation, and both are ways to resolve labor disputes. Labor disputes must first submit the dispute to the labor arbitration institution for arbitration. After the arbitration award, if the arbitration award is not satisfied, should be within fifteen days after receipt of the award to the people's court, without arbitration and directly to the people's court, the people's court shall not be accepted, labor disputes need to be arbitration and then litigation.
Legal analysis
Labor disputes need to be arbitrated before litigation. According to the law, for labor disputes, should first apply for labor arbitration, the labor arbitration is not satisfied, only to the court. Labor arbitration is a necessary procedure to the court. In the following cases, you should first apply for labor arbitration, and only after you disagree with the arbitration decision can you file a lawsuit: disputes arising from the confirmation of labor relations; disputes arising from the conclusion, performance, alteration, dissolution and termination of labor contracts; disputes arising from the removal of names, dismissal, resignation and separation from service; disputes arising from working hours, rest and vacation, social insurance, benefits, training and labor protection; disputes arising from the remuneration, medical fees, economic compensation or indemnity; and disputes arising from the employment of labor; and disputes arising from the employment of labor. medical fees, economic compensation or indemnity; and other labor disputes stipulated by laws and regulations. In the event of labor disputes, workers can defend their rights through a variety of channels: for example, they can negotiate with the employer; they can also ask the labor union or a third party **** with the employer to negotiate and reach a settlement agreement; they can apply for mediation to the mediation organization; they can apply for arbitration to the Arbitration Commission for Labor Disputes; and, if they are not satisfied with the arbitration award, they can generally file a lawsuit with the People's Court.
Legal basis
"Chinese people's **** and the State Labor Law"
Article 79 of the labor disputes, the parties may apply to the unit of the labor dispute conciliation committee for conciliation; conciliation is not achieved, one of the parties to the request for arbitration, you can apply for arbitration of labor disputes arbitration committee. One of the parties can also apply directly to the labor dispute arbitration committee. The arbitration award is not satisfied, you can file a lawsuit to the people's court.