原文始发于微信公众号（瑞中法协）：ImpactS of the Covid-19 on China's Electronic Litigation System
About the Author: Zhu Feng, Partner of Guohao Law Firm (Shanghai), Director of the Financial Instruments Business Research Committee of Shanghai Bar Association, and expert consultant of the Supreme People’s Procuratorate on civil and commercial administrative cases. Hu Zihao, an attorney at Guoco Law Firm (Shanghai), secretary of the Financial Instruments Business Research Committee of Shanghai Lawyers Association. Published in the 2nd Issue of Journal of Swiss Chinese Law Review and Translated by Tianze Zhang.
Thanks to the rapid development of information technology, telephones, computers and other technological products have been introduced as auxiliary tools to civil and commercial litigation, greatly enhancing the efficiency of litigation. And currently it is the climax stage of the development of the Internet, the continuous development of online communication technology, and further promote the innovation of litigation forms of civil and commercial cases in China’s courts, such as electronic litigation. According to the strategic plan of the Supreme People’s Court’s Five-Year Development Plan for People’s Court Informatization Construction (2016-2020): “It is necessary to strengthen the development plan of people’s court informatization construction, promote the transformation and upgrading of people’s court informatization construction, and build the people’s court informatization version 3.0 with big data analysis as the core as soon as possible, so as to promote the modernization of the trial system and trial capacity. “
As an important element in the construction of the people’s courts’ informationization, electronic litigation has already begun its pilot work in China. But in essence, for electronic litigation, has not been clearly defined. According to the current practice, electronic litigation in multiple proceedings or stage all have use, so to enumerate the definition: the use of Internet information technology, online prosecution, remote filing, online trial, remote testimony and evidence, litigation documents, network text message delivery, electronic evidence collection, trial video live, judgment online public and other series of function of litigation form.
Before the epidemic, the pilot work of electronic litigation had already started. On January 11, 2018, the Supreme Court identified Ningbo Intermediate Court as the only national court mobile electronic litigation pilot.In April 2018, the national court mobile electronic litigation pilot work press conference was held in Ningbo Intermediate Court, the national mobile electronic litigation joint project team officially launched.
It must be noted that the online court trial pilot work comes from the authorization of the Supreme Court by the Standing Committee of the National People’s Congress (NPC) in December 2019, which issued a Decision on Authorizing the Supreme People’s Court to Conduct Pilot Reform Work on the Simplification and Streamlining of Civil Litigation Procedures in Some Regions, authorizing the Supreme Court to sound electronic litigation rules and other pilot work for a period of two years. On this basis, on January 15, 2020, the Supreme Court issued the Implementation Measures for the Pilot Reform of Civil Procedure Simplification and Triage, of which Article 23 clearly stipulates the applicable circumstances for online court hearings. It can be seen that even without the impact of this epidemic, in 2020 in China will promote online court hearings, electronic service and other electronic litigation pilot.
The direct impact of the epidemic on electronic litigation pilot work includes: shortening the time for the introduction of guideline documents for electronic litigation pilot work. This year, because of the new crown epidemic, the traditional civil and commercial litigation in the form of court proceedings have been affected, courts around the region have issued an urgent notice, requiring the suspension of the filing court to submit materials, postpone the convening of the trial and other litigation work. In Zhejiang Province, for example, the Zhejiang Provincial Higher People’s Court issued a notice on January 28, 2020 on the prevention and control of the new coronavirus pneumonia epidemic, requiring that “the parties, litigants, litigants due to new coronavirus infection of pneumonia is under treatment, quarantine, or in the area affected by the epidemic shut down traffic, unable to go to court to participate in the relevant litigation activities, according to the law The application for extension shall be granted.” On January 31, the Zhejiang Provincial Higher People’s Court issued another notice on matters related to litigation services during the epidemic prevention and control period, reiterating that “matters such as filing cases, submitting litigation materials, appealing letters and inquiries will be handled through online methods such as Zhejiang court network, mobile micro court, lawyer service platform and smart court APP.” Although some regional high courts have published notices of postponement of court sessions, given the long duration of the epidemic, if only postponement of court sessions is taken, it will inevitably lead to a backlog of cases, so on February 14, 2020, the Supreme People’s Court issued the Notice on Strengthening and Regulating Online Litigation During the Prevention and Control of the New Coronary Pneumonia Epidemic (“Notice of Online Litigation Work”), which requires that “People’s courts at all levels shall promote online litigation, taking full account of factors such as case type, difficulty and priority, while also effectively safeguarding the legitimate litigation rights and interests of the parties and respecting their right to choose the mode of case handling.” The Notice on the Work of Online Litigation further standardizes the operational procedures related to the work of online filing, electronic submission of evidence for litigation, online court hearing, electronic service and online mediation.
The pilot scope of e-litigation has been expanded. In addition, because of the impact of the epidemic, the scope of application of the pilot electronic litigation work from the “civil litigation procedure simplification and streamlining of the implementation of the pilot reform measures” Article 27 of the more than a dozen prefecture-level municipal courts, intellectual property courts, Internet courts, etc. further expanded to the “online litigation work of the Notice of the People’s Court at all levels”.
In fact, online filing, online court hearings and other litigation work has long been not a completely unknown field in China. As early as 2017, Internet courts in Hangzhou, Beijing and Guangzhou were established and pushed the e-litigation work of Internet cases to its peak. According to “Internet Justice in Chinese Courts” published by the Supreme People’s Court in 2019, as of October 31, 2019, the Internet courts in Hangzhou, Beijing and Guangzhou accepted 118,764 Internet cases and concluded 88,401, with an online filing application rate of 96.8% and a full-flow online examination and conclusion of 80,819 cases. It’s just that the previous online trial pilot was limited to Internet courts, intellectual property courts and other special types of courts, no large-scale pilot rollout.
Under the impact of the epidemic, starting in February this year, all local courts across the country began to online trial pilot, Zhejiang, Shandong, Shanghai, Gansu, Heilongjiang, Guangxi and other provinces can be found in the local courts to carry out online trial and other work of the news reports. Generally speaking, the main forms of traditional civil and commercial litigation – court hearings, cross-examination and other procedures – are stuck in an awkward situation due to the risk of transmission of the new crown epidemic, and local courts are still unable to set a trial date or schedule a trial after postponing the trial date, so the parties and lawyers can only wait for notice. Under these circumstances, the Supreme Court promptly promote online filing, online trial, electronic delivery and other electronic litigation pilot, not only helps the court of civil and commercial cases of the complexity of triage, but also in the epidemic period to help alleviate the backlog of cases and other issues.
In the trend of Internet development, its technical achievements are bound to be used to work, life in all areas, from the general environment of human development, the use of science and technology in the judicial field is actually only the adaptation of the current technological development, and this epidemic has accelerated the judicial trial work of the Internet technology adaptation speed. In the future, electronic litigation will inevitably be in China’s court system to fully develop, but the integration between its traditional legal concepts and still have a long way to go.
E-litigation is also called “ODR” (Online Dispute Resolution) extraterritorially, which is similar to “ADR” (Alternative Dispute Resolution). Dispute Resolution (DR) is very similar, and in fact evolved from the latter. From the late 1990s to the present, ODR has been widely used in the United States and Europe, with the United States being the most advanced country in the development of ODR. With the development of the Internet, ODR has gradually become a neutral third party to assist parties in resolving disputes by using information technology tools such as e-mail and social networks in virtual places. 2002, the Michigan Internet Court was established in the United States, whose jurisdiction is not limited to information technology disputes, but also has jurisdiction over insurance, banking, contract disputes and other cases. The development of ODR in foreign countries has a kind of inclusive goal, that is, not only separating alternative dispute resolution from online dispute resolution and judicial trial, but also unifying various forms of dispute resolution mechanisms, emphasizing inclusion and coexistence, so as to establish a dispute resolution system with an all-round attitude, helping parties to resolve disputes in a timely and efficient manner and safeguard their legitimate rights and interests.
In view of this, the future should not only regard the electronic litigation as the electronic trial, and not only identify it as through the network technology to transform the traditional trial mode, but should be more comprehensive view of this organic integration, more thinking about electronic litigation and diversified dispute resolution mechanism of cooperation, the future of the electronic litigation system into a comprehensive justice, arbitration, civil mediation, industry mediation and other multi-dispute resolution system. A comprehensive platform for sharing resources and pooling resources to resolve more disputes. Of course, at this stage, to further improve the electronic litigation in the court of civil and commercial cases in the relevant rules for China’s judicial practice is more target-oriented and operable.
Put aside the impact of the epidemic, the Supreme People’s Court put forward the civil and commercial cases of electronic litigation is the original intention of the case will simplify the stream, simplify the trial process, improve trial efficiency, alleviate the local court “case more people less” problem, in this goal China first developed a diversified dispute resolution mechanism, after the maturity of the Internet technology to carry out the formal Pilot electronic litigation, from the essence of civil and commercial electronic litigation, the core or litigation, “electronic” is only a tool, electronic litigation does not violate the principles of justice.
From China’s traditional judicial practice, the people currently do not quite trust the online court system, that its form is not serious enough, because of China’s traditional legal culture, the people rely on the authority of the public prestige. To a certain extent, online trial will further reduce the prestige of judicial trial in the hearts of the people, therefore, in electronic litigation, first of all, to protect should be the effective exercise of the litigation rights of the parties, can not because of its online form makes the parties to discount the right; secondly, to ensure that the parties to the trial form has the right to choose, so as to meet the parties to the trial form of psychological needs. According to the “civil litigation procedure simplification and streamlining reform pilot implementation measures”, the current parties to the trial convening mode, whether to apply electronic service and other procedures have the right to choose, this is the party-centric values in electronic litigation. Finally, electronic proceedings must give the parties a sufficient sense of “good faith”, that is, they must meet at least the following points.
1. Safety and fairness of the online platform.
2. Punitive provisions for improper use of the Platform are essential.
3. The litigation activities conducted through the platform must be guaranteed to be the true expression of the parties’ intentions.
4. one party is prohibited from unilaterally withdrawing from the proceedings without the consent of the other party, and the offender shall be punished.
To further promote the e-litigation system for civil and commercial trials, it must be a collaborative effort by the legal community, not just a unilateral effort by the courts. As a new thing, the existence of electronic litigation is short, if not by the epidemic, the community’s doubts about electronic litigation would be even greater. The development of any thing is the unity of forward and tortuous, electronic litigation is also the same. In the development and improvement of electronic litigation related rules at the same time, also need to play the role of the legal community, by strengthening the lawyers, legal experts on electronic litigation awareness, recognition to indirectly influence the attitude of the public to electronic litigation.
In addition, for lawyers, mastering the relevant rules of electronic litigation, professional skills is also an essential and important part of the practice process. In the development of electronic litigation trend, lawyers must strengthen the study of electronic litigation rules, improve the ability to master the use of the Internet platform. Only by mastering the relevant skills, familiar with the relevant rules of electronic litigation, may in the future of the case agent work in a more timely and efficient manner to seize the first opportunity to maintain the substantive and procedural rights of the parties.
The epidemic has also promoted the learning and mastery of the relevant rules of electronic litigation by the lawyers’ community in China, and with the demand for further improvement of the relevant rules of electronic litigation in the future, the lawyers’ community should also actively and decisively voice their opinions and make suggestions for the improvement of the relevant rules so that they can better meet the needs of practice. Through the concerted efforts of the legal community, it is believed that it is only a matter of time before electronic litigation is fully promoted.
The promotion of the electronic litigation system in our country is the general trend, objectively the outbreak of the new crown epidemic and to the electronic litigation system “added a firewood”, and electronic litigation also for the new crown epidemic during the court’s trial work provides a solution channel and technical support. With the gradual dissipation of the epidemic haze, electronic litigation will not leave the public’s vision; on the contrary, the electronic litigation system will further demonstrate its timely, efficient and convenient advantages under the premise of protecting the litigation rights of the parties, for the legal community and the public’s awareness, recognition and application.