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《中菲仲裁案》仲裁庭于2015年10月,在中国拒绝参加仲裁程序的前提下,作出了其《管辖权和可受理性裁决》(《管辖权裁决》),事实上接受了菲律宾提出的所有十五项诉求,并决定在实质审查阶段分类审查这些诉求。从表面上看,《管辖权裁决》是一份逻辑严密,精心制作的文件。但认真研究,笔者认为裁决存在不同层面的问题和瑕疵。当然这样的结论来自一位中国学者也是预料之中。南海纠纷涉及复杂交错的法律、政治和经济问题,是个典型的屁股决定脑袋的论题。但笔者仍然希望尽可能摆脱情感色彩,从法律逻辑上分析《管辖权裁决》存在的瑕疵。找到了瑕疵,当然才有这篇论文的出现。至于其他学者和专家是否能够同意笔者的分析和观点,则是一个尚待决定的问题。希望关注此问题的专家和学者能够贡献高见。
In “China-Philippine Arbitration Case”, the arbitration tribunal made its “Judgment of Jurisdiction and Admissibility” (“Jurisdictional Decision”) in October 2015 with the refusal of China to participate in the arbitration proceedings. In fact, it accepted the proposal put forward by the Philippines Of all fifteen claims and decided to examine these claims in a substantive examination phase. On the face of it, the Jurisdictional Decision is a logically rigorous and elaborate document. However, careful study, I believe that there are different levels of ruling problems and flaws. Of course, this conclusion comes from a Chinese scholar is also expected. The South China Sea dispute involves complex interlaced legal, political and economic issues and is a typical ass decision. However, I still hope to get rid of the emotional color as much as possible and analyze the flaws of “Jurisdictional Judgment” from the legal logic. Found a flaw, of course, only the emergence of this thesis. As for whether other scholars and experts can agree with the author’s analysis and opinions, it is a pending issue. Experts and scholars who wish to pay attention to this issue can make their best contribution.