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在“支持仲裁”理念不断普及的今天,寻找扩张仲裁协议的法理基础成为仲裁立法与理论界的一大中心议题。在众多著述中,往往以“公平合理期待”原则作为依据,将清偿代位制度列入仲裁协议效力扩张的情形。事实上,由于清偿代位情况下不存在法律上的意思表示,故其并不具备适用“公平合理的期待”原则的基本条件。因此,我们应当更多关注民事实体权利变动对仲裁协议效力的影响,采纳法定移转论为清偿代位语境下仲裁协议效力扩张之法理基础。
Today, as the concept of “support for arbitration” continues to popularize, finding the legal foundation for the expansion of arbitration agreements has become a major issue of the legislative and theoretical circles in arbitration. In many writings, the principle of “fair and reasonable expectation” is often used as a basis to include the subrogation of liquidation system in the case of the effectiveness of the arbitration agreement. In fact, due to the fact that there is no legal representation in the case of subrogation, it does not have the basic conditions for applying the principle of “fair and reasonable expectation.” Therefore, we should pay more attention to the influence of the change of civil rights on the validity of the arbitration agreement, and adopt the statutory transfer theory as the legal basis for the expansion of the effectiveness of the arbitration agreement in the context of subrogation.