[author]Fan Chuanming

[content]

The Open-Eyed Judge: The Impact of Digital Justice on the Functioning of Judicial Power

Fan Chuanming

Abstract: There is a coupling relationship between digital justice and trial supervision and management system. Digital justice has reshaped the judicial working environment of judges, enabling supervisory managers to monitor trial activities throughout the process and dynamically with the help of digital means, and judges' behaviors can be visible and recorded. Specifically, it includes the changes from pre- and post-supervision to whole-process supervision, from static supervision to dynamic supervision, and in the nodalization and visualization of the trial process. Digital justice has led to a one-sided view of justice, and judges have fallen into a panoptic structure. The power relationship in the trial field presents the following states: the trial power is highly visible, the strategy of trial supervision and management tends to be subtle, the power of supervision and management is diffuse, and short-distance supervision is superimposed based on the bureaucratic structure. The operation of judicial power puts more emphasis on standardization, but it is easy to lead to the formal unity of the judgment scale, which is reflected in the standardization of the litigation processes, the unification of the substantive judgment standards, and the pressure of standardization in the judge assessment. The modern reform of digital justice and trial management should return to the substantive judicial responsibilities of judges.

Key Words: Digital Justice; Trial Supervision; Trial Management; Panopticon

Introduction

Chinese courts initiated the construction of informatization in the 1980s, but for a long period of time, this kind of informatization construction only stayed at the basic level of computerized office in the court system, interconnection of judicial information, and online disclosure of judicial information, which did not have any substantial impact on the operation of the trial right and the trial supervision and management mechanism. After 2016, based on the rapid development of digital technology and the reform of the judicial accountability system, the level of court informatization construction has been upgraded to a higher level. After 2016, based on the rapid development of digital technology and the reform of the judicial accountability system, the level of informatization construction of courts was upgraded to a higher level. The upgraded informatization construction advocates the reform of “smart court” or “digital court” and tries to fully apply digital technology to judicial trials. The upgraded informatization construction includes the following four mutually supportive parts: first, the construction of online judicial platforms and systems, forming a full-process online case handling system; second, synchronization with online justice, the implementation of e-file reform, including the simultaneous generation of files with the case, voice synchronization and transcription technology, audio-video recordings instead of trial transcripts, electronic files “single set system” filing, blockchain storage, and the “single set system” filing, and the “single set system” filing. “ archiving, blockchain storage technology, etc.; third, the construction of intelligent auxiliary case handling system, that is, in the judge's case handling system built-in intelligent analysis tools or sub-systems, the implementation of artificial intelligence to assist in certain matters; fourth, the construction of the relevant judicial database used to support the intelligent analysis of the relevant databases, such as the case database, the case in progress database, the referee library, the crime of the library of evidence, the standard library, etc.. Fourth, the construction of relevant judicial databases to support intelligent analysis, such as case database, case information database, judgment documents database, crime elements database, evidence standards database. At present, these four parts gradually cover the entire process of judges' trial work. For the sake of discussion, this paper uses the term “digital justice” to refer to the application of information technology such as computers, the Internet, artificial intelligence, and big data in judicial trials.

Against the aforementioned background, this article intends to explore the following questions: what impact will the popularization and advancement of digital technology bring to the trial supervision and management (hereinafter referred to as “trial supervision”) mechanism and the operation of trial power? In other words, with the more and more extensive and in-depth application of information technology such as online justice, e-file, intelligent assisted case handling, big data, etc., what kind of changes will take place in the relationship between the power subjects, the behavior pattern of judges, and the way of production of legal knowledge in the field of trial? What kind of normative evaluation should we give to this kind of change? Although there have been many discussions on digital justice, including the exposition of digital jurisprudence, computational jurisprudence, artificial intelligence jurisprudence and other grand paradigms, as well as the analysis of specific issues such as the construction of digital courts and Internet courts, the use of blockchain evidence and electronic data evidence, and the application of big data and artificial intelligence technology in judicial adjudication; however, few academic works have elaborated on the digital judicial system and the operation of judicial power from the point of view of trial supervision and adjudication. However, few academic works have elaborated the significance and problems of digital justice from the perspective of trial supervision and operation of trial right, which is one of the core issues in the current implementation of digital justice and advocating the reform of trial management modernization, and also an important entry point for us to analyze and review the relevant system or mechanism innovation from the theoretical point of view. In fact, the connection between trial supervision and digital justice has been emphasized many times, and in 2015, Zhou Qiang, President of the Supreme People's Court, said at a symposium of presidents of higher courts nationwide that judicial reform and informatization construction are “two wheels of the car and two wings of the bird” for the development of the people's judicial career. The reform of the judicial accountability system for trial supervision has been called the “cornerstone” of the entire judicial system reform. A series of reform documents have emphasized digital technology as an important means of trial supervision. For example, the “Supreme People's Court on the further full implementation of the judicial accountability system of the implementation of the views” requires: to improve the information technology of the whole process of trial supervision mechanism, comprehensively support the online handling of cases, the whole process of leaving traces, intelligent management, intelligent early warning and monitoring of the trial process and the results of deviations from the situation; to strengthen the standardization of the work of the trial, the implementation of the standardization of the construction of the work of the trial, to improve the trial of the criminal, civil, administrative, state compensation, the implementation of the process standards, promote standardized construction, To strengthen the standardization of trial and execution work, improve the criminal, civil, administrative, state compensation, execution and other areas of trial and execution process standards, and promote the standardization of construction and information technology construction in-depth integration; the court, the court president should exercise the right to supervise the trial, and should be in the case system throughout the trace. The Implementing Opinions on Deepening the Comprehensive and Complementary Reform of the Judicial Accountability System further require: to embed the list of duties of various types of trial personnel, performance guidelines into the case handling platform, to achieve the trial behavior can be prompted, traceable, traceable, supervisory goals; four types of cases for systematic automated identification, intelligent supervision, systematic automatic warning. In addition, some researchers have noted that the digital justice reform emphasizes the internal orientation of “management theory”, i.e., the “empowerment” of informatization means for trial supervision.5 In this context, the digital justice reform has been a major challenge for the judicial system, as it has been a major challenge for the judicial system. In this case, “trial management informatization can realize the openness and transparency of each case in each trial procedure and trial node, and the search and query of related cases and class cases, so as to make the trial management more accurate”. This paper will explore the above issues through two perspectives: one is the perspective of the regulatory relationship and the characteristics of power operation in the “panoramic view” structure. In the virtual space constructed by the digital justice, the judge's trial activities are put under the “watchful eye” of the trial supervisory body in the whole process, in real time and dynamically. As a result, a structural relationship similar to a panoramic view is formed between the judge and the subject of trial supervision. With the help of this analogy, we can better describe the characteristics of trial supervision in the context of digital justice and grasp the dimensions that have been neglected by traditional theories. The other is the perspective of the judge as an “interpreter”. If we think of law as an interpretive concept, it means that judges, in their judicial activity, inquire into the purpose served by legal rules and apply, extend, modify, or limit the rules according to their understanding of the purpose. This hermeneutical position is also known as “creative interpretation”, i.e. “the imposition of purpose on an object or practice in order to understand it as the best possible instance of the form or type to which it is thought to belong”. This role of the judge requires him or her, in the context of a specific trial, to give a constructive interpretation of the exact meaning of the rule in its present form, rather than formally following external standards.

1. The reshaping of the working environment of judges' trials by digital justice

The trial activities of judges can be divided into external trial behavior and internal office behavior. External trial behavior, including the promotion of trial procedures and trial results. The former includes presiding over court hearings, conducting court investigations, organizing pre-trial conferences, and adjudicating procedural matters; the latter includes announcing the outcome of the trial, giving reasons for the decision, and serving the judgement. Internal office behaviors include reading files, reporting to and requesting instructions from specific subjects on certain adjudicative matters, conducting case deliberations and discussions, and writing adjudicative documents. In the traditional trial work environment, these trial activities either take place in a direct verbal manner in a specific physical space such as a courtroom, conference room, office, etc., or in the form of paper carriers such as decision documents and internal request documents. The scope of those who are allowed to enter the above specific physical space needs to be strictly limited, and it is objectively impossible for these physical spaces to allow an unlimited number of people to enter at any time without cost. Those who are allowed to read the above paper carriers not only need to be limited in scope, but also the time of their reading has a certain degree of lag. As a result, the judge's trial activity is in a space that is not entirely public and is highly secretive, protected by both physical barriers and institutional thresholds. However, digital justice is gradually reshaping the working environment of judges' trials. It has not only dismantled the physical walls protecting judges' trial activities, but has also greatly weakened the threshold of the access system, ultimately “structurally” reshaping the trial work environment. This is particularly evident in the dimension of the “judge-trial regulator” relationship.

1.1From ex ante and ex post supervision to full-process supervision in the process of events

China's original trial supervision mechanism mainly consists of two parts: one is the approval mechanism as the representative of the ex-ante supervision, that is, for certain cases or rulings, the judge in the completion of the trial and deliberation, cannot be directly to the outside world to give a ruling, but need to be formed by the ruling to the administrative leadership (president, president, etc., including deputy) or collective decision-making body (trial committee, professional judges conference, etc.) to report to ask for to request their review, approval or signature. The effective implementation of this supervisory mechanism relies on the sectional structure within the court. The second is ex post facto supervision represented by the assessment mechanism, i.e., the court conducts ex post facto quality assessment of the cases heard by each judge and uses the assessment results as the basis for the judge's performance evaluation, tenure evaluation, and disciplinary action, thus inversely urging the judge to diligently perform his or her duties in the process of hearing a case. As judges can anticipate that the court will conduct rigorous post-evaluation and extensive post-trial assessment of the cases they hear, they will adjust their trial behavior in accordance with the requirements of the assessment at the time of hearing the cases.

Digital justice is reshaping the trial monitoring mechanism. It not only provides the so-called “technological empowerment” for the original pre- and post-supervision mechanism, making it more convenient and efficient; more importantly, it is constructing a whole-process, in-process, dynamic and visualized new trial supervision mechanism. The implementation of the whole process of online case handling, so that the main body of trial supervision and judges share the same information technology office platform, which breaks the original physical barrier between the two. The former can be on the latter's trial activities (including both external trial behavior, including the office behavior) to maintain the whole process, real-time attention. Thus, the trial supervision body to maintain a constant “presence” posture, which demonstrates its judge trial activities of supervision, management power. Unlike the traditional pre-approval and post-assessment supervision, this is a kind of incidental, process-oriented supervision. Of course, the trial supervision subject of the “presence” is the network virtualization. In fact, it may not be synchronized to watch the judge's trial activities. The key point of this “presence” is that it allows the judge to realize: the trial supervision subject “can” enter the digital system at any time to review their own trial activities, and their trial activities will be recorded on the digital platform, leaving traces and constantly being retrospective.

1.2 From static to dynamic regulation

The full-flow ex post regulatory mechanism emphasizes the dynamic nature of trial regulation. The traditional regulatory mechanism focuses on the stage or final documents made by the judge. Whether it is a pre-approval type of supervision or post-evaluation type of supervision, all to some kind of instrument as the basis, such as request materials, reporting materials, judgment documents. These documents are static, the trial supervision based on these documents will inevitably lag behind. The new regulatory mechanism with the help of digital platform, can be synchronized in the process of watching the trial activities to capture regulatory information, and will be instantly fed back to the case judge, so that the same regulatory matters can be carried out in a very short period of time for multiple rounds of feedback. In addition, the scope of the paper documents used by the traditional monitoring mechanism to record the trial activities of judges is extremely limited. It usually contains only the conclusion that the judge has decided to give after careful consideration, and it is difficult to reflect some process information of the trial activities. The new regulatory mechanism with the help of digital case handling platform, the use of file with the case synchronization, voice synchronization transcription, audio and video instead of trial transcripts, electronic file single set of filing system, blockchain storage technology and other electronic file technology, greatly expanding the breadth and depth of the trial information recorded. Various types of intelligent auxiliary system application, more prominent trial supervision of the dynamic, such as emphasizing the “intelligent early warning monitoring trial process and results deviation posture”, “illegal operation automatic interception, case risk real-time prompts” and so on.

1.3the node of the trial process and visualization

In order to achieve online case management and effective supervision, it is necessary to the overall trial activities for the micro-unit cut. Embedding the program language in the information system, can be in the case handling platform on the trial activities of micro-unit construction. This idea in the judicial policy documents and the current reform of the courts across the country to explore, specific performance for the trial process of the node set, that is, the trial process of certain positions are specially marked as the need to control and monitor the node. At each node, the system has built-in options, templates, guidelines, hints, warnings, interceptions or freezes, etc., which are automatically pushed to the judges and trial supervisors in accordance with the trial process. For example, the “Trial Execution Supervision Early Warning and Analysis System” used in the Shanghai court system includes explicit comparison and implicit analysis and warning functions. The explicit comparison warning is subdivided into 23 warning points, and the implicit analysis warning contains four contents: analysis of trial and execution cases, analysis of comprehensive affairs, intelligent supervision of court hearings, and diagnosis of cited controls. Taizhou Intermediate People's Court in Zhejiang Province uses the “Taizhou Court Clean Justice Risk Prevention and Control System”, which has set up 7 categories, 60 risk indicators and red, yellow and blue risk warning tips. The node-based setup enhances the standardization, normalization and automation of the trial process. A researcher concludes: “The focus of trial management lies in the embodiment, recording, feedback and supervision of trial process nodes. Trial process node management, according to the case trial procedures, the case of the filing review, transfer, scheduling, trial, issuance, evaluation, filing and other aspects of the scientific, standardized, orderly and systematic management. ...... traces the process information of specific cases up to each case node, realizes the scientific and quantitative management of each court and each judge up to each case, and enhances the pertinence, objectivity and authority of the assessment work.”

The trial process under the new regulatory mechanism is not only node-oriented, but also visualized. Trial supervisors from its regulatory entrance into the case platform, can see the case handled by each judge, each case is in the process of nodes, in each node of the judge's results, relevant behavioral information and deviation from the predetermined standards. However, this visualization is unidirectional, i.e., the judge is visible to the trial supervisor, on the contrary, the trial supervisor is invisible.

1.4 Changes in other dimensions

The reshaping of the working environment of judges by digital justice is not only reflected in the dimension of the “judge-trial supervisor” relationship, but also in other dimensions of the relationship. First of all, this reshaping is also reflected in the dimension of the relationship between the judge and the litigants. In the traditional offline courtroom space, there is an obvious positional difference between the judge and the litigants. In order to emphasize the majesty of the judge, and to facilitate the judge to observe and preside over the trial, the courtroom seat is located in a higher position than other seats. Because the participants are seated lower, they are subject to a condescending hearing from the judge when they make their statements. Digital justice, however, is disrupting this structure, and in some ways even inverting the relationship. In cases where proceedings are conducted online, judges and participants are directly connected by two-way video, or both are video-enrolled in virtual courtroom scenarios on the Internet or on the court's private network. Judges lose their positional advantages in the traditional court structure, and become the same as all the participants in the proceedings, their behavior can be observed, watch and leave a trace of the whole process. In addition, according to the relevant regulations, whether the case is online or offline trial, the trial process needs to be fully audio-video recording and open to the parties, defense lawyers and litigation agents through the online platform. Litigation participants who believe that the trial activities are not standardized or in violation of the law, can apply for the court to investigate and verify the audio-video recording of the trial. The system of audio and video recording of court hearings makes judges realize that their trial behavior will be traced throughout the whole process, and can be retrospectively reviewed, which magnifies the pressure experienced by judges.

Second, this reshaping is also reflected in the dimension of the “judge-public” relationship. Due to the objective conditions, in the traditional trial environment, the publicity of the trial process and the outcome of the case is extremely limited. On the day of the trial, very few members of the public enter the courtroom as a physical venue to observe the proceedings, and media coverage of the trial is a rare exception. Digital justice has significantly broadened the scope of judicial disclosure, making the trial activities of judges highly accessible to the public. In contrast to the conservative attitude of most countries towards live broadcasting of court hearings, , in China, a large proportion of cases have been synchronized with live broadcasting of court hearings and allowing the public to watch online. In the case of live trial, the judge presided over the trial, the court investigation behavior is completely exposed in the public eye. In addition, in the process of digital justice, the court system has realized the goal of automatically generating and unifying judicial data across the country. These judicial data are made available to the public through open judicial platforms. By accessing these websites, the public can learn about the process of judges hearing cases, the results of their decisions, the reasons for their decisions and other relevant case information. This greatly expands the scope of judicial information that can be made public by traditional means of judicial disclosure based on paper carriers or through the use of physical space. There is another, more subtle, aspect of digital justice that expands the scope of judicial disclosure: the case information retrieved and exported from the abovementioned judicial disclosure platforms is available to the public in the form of judicial big data. Some special members of the public, such as academic researchers, legal service providers, and relevant business subjects, can conduct targeted searches, multi-dimensional statistics and deep mining of these judicial big data, and can even model and analyze a judge's trial behavior to form a “judge's portrait”. This has led to the possibility of judicial disclosure from the disclosure of information on specific cases to the mining and prediction of judges' adjudication behavior.

2.Based on the panoramic open-view structure of trial supervision and management

In summary, digital justice has reshaped the working environment of judges' trials. Trial supervisors can use digital technology to monitor judges' trial activities in a full and dynamic way. The positional advantage of judges over litigants is gradually lost, the physical barrier between judges' trial activities and the public is penetrated, and the institutional threshold is lowered. Judges' trial behavior and even the internal office process are exposed to the attention and scrutiny of trial supervisors and related subjects. In fact, this change is asymmetrical. Digital technology allows these subjects to observe and even see through the judge, but does not reciprocally improve the judge's ability to see through these subjects, and even makes the trial regulator become more invisible. Digital justice unidirectionally leads to the opening up of justice, and the judge - as an object rather than a subject - falls into a structure of “panoramic openness”. The analogy with Foucault's panopticon helps us to recognize and deduce the hidden character of the functioning of the judiciary.

2.1 The Spatial Relationship between Judges and Regulators

Foucault takes the Panopticon designed by Bianchin as an architectural image to describe the technology of power, and uses it to illustrate the operation mechanism of power in a “disciplined” society. The Panopticon is a real physical space that is created through a certain kind of architecture. “A building is no longer just to be seen or to view the space outside, but to facilitate a clear and detailed control of the inside - to make every movement of the people in the building visible.” In this spatial structure, the disciplined party (the supervisee) is fully and constantly observed and seen, as the term “panoramic view” suggests. The party imposing the discipline (the regulator), on the other hand, is in the shadows and cannot be observed. The latter may or may not be actually observing the former; the former is aware of the eyes that may be looking at it at any time, but is unable to confirm that it is being observed.

This panoramic open-view structure, as mentioned earlier, is becoming part of the working environment of judges' trials. Digital technology has made it easy for the subject of trial supervision to enter the trial scene, watch the judge's trial behavior, and be informed of the judge's behavioral information or conclusions. The judge becomes the subject of an open view without being able to reciprocate the observation of these trial regulatory subjects. Although the panoramic open-view structure in which the judge is caught is not a real physical space but a virtual information environment, this difference does not diminish the effect of the panoramic open-view structure. Because compared to the traditional physical space, the panoramic open-view structure created by digital justice not only allows the supervisee to be instantly and directly observed, but also his or her behavior to be traced and repeated throughout the entire process. This structure breaks through the limitations of time and space and expands the scope of observation of the regulated by the regulator.

2.2 Inspection procedures corresponding to the panoramic view structure

The panoramic view structure is accompanied by a set of checking procedures, i.e., the ongoing characterization, classification and comparison of those who are subject to discipline. As mentioned earlier, under the reshaping of digital justice, the traditional trial supervision mechanism has undergone changes from ex ante and ex post supervision to full-process ex post supervision, from static to dynamic supervision, and nodalization and visualization of the trial process. These changes are clearly intensifying the scrutiny of trials. Moreover, with the establishment of digital justice measures such as online litigation, the popularization of audio and video recording of court hearings, the implementation of online case handling for the entire process, the promotion of live broadcasting of court hearings, the construction of a judicial openness platform and the opening up of judicial big data, groups such as litigation participants, members of the general public, academic researchers, legal service providers and relevant business entities have been drawn into the queue for the implementation of inspections of judges and their trial activities. Foucault also singles out the archival methodology employed by the inspection process: “Inspection leaves behind a large and detailed archive assembled on a person-by-person and time-by-time basis. Censorship places one not only in the realm of surveillance, but also in a network of writing. It plunges people into a mass of documents. These documents capture and limit people. The process of censorship is always accompanied by a system of centralized registration and documentation. A kind of 'writing power' is established as a necessary part of the mechanism of regulation.” The archival approach embodies the continuity, comprehensiveness and judgmental nature of inspection. This archival approach is also highly valued in China's current digital justice and trial management modernization reforms. For example, the current digital justice and trial management modernization reform requires the establishment of a set of “case quality assessment system and evaluation mechanism,” i.e., a mechanism for evaluating the quality of cases by means of routine spot checks, key assessments, and special assessments, relying on an information platform, and a set of “judge performance evaluation system and performance files. It also requires the establishment of a set of “judges' performance evaluation system and performance files” to reflect judges' performance of their duties, the number of cases they have handled, the quality of their judgments, their judicial skills, and their external evaluations, and to use this as an important basis for judges' tenure, appraisal of excellence and promotion. In addition, it also emphasizes the “informatization of assessment work”, that is, the use of information platforms, digital technology and intelligent applications to capture real-time case handling and office data, so that the assessment is automated and intelligent. Thus, we see that the judge is open to the eye not only fell into the so-called Foucault's “writing network”, and digital technology to improve the generation of files and storage forms, and even data for the judge “portrait”.

2.3Mechanisms of Pressure on the Judge

The panoramic open-view structure explained by Foucault puts pressure on the regulated to self-censor. The regulated will self-check their behavior according to the disciplinary requirements set by the regulator in order to conform to the normative standards. Inspection and self-check constitute “a normative gaze, a kind of surveillance that can lead to characterization, categorization, and punishment. It establishes the visibility of the individual from which one can distinguish and judge him or her”. The structure of the panopticon corresponds to a “mechanism of coercion through surveillance. In this mechanism, the technique of surveillance induces an effect of power”. This mechanism can induce such effects because there is a coercive relationship between the regulator and the regulated. The panoramic open-view structure into which the judge falls certainly corresponds to a certain pressure mechanism. However, the pressure mechanism does not directly manifest itself in physical coercion, but rather in a system of assessment and responsibility for judges that is Chinese in character. In the context of this system, a judge's trial work is closely related to his or her job promotion, performance accounting, disciplinary action, and even legal responsibility. When judges realize that they are caught in a structure of open-mindedness, they urge themselves to self-examine and discipline themselves, striving to conform to or even cater to the predetermined standards of the appraisal system, and to circumvent potential liabilities or unfavorable consequences.

In summary, digital justice has reshaped the working environment of judges' trials, generating a new trial supervision mechanism based on a panoramic and open-view structure. In fact, this mechanism of innovation is essentially an extension of the original institutional logic, that is, in different policy contexts and technological contexts, different from time to time but consistently emphasize the effectiveness of trial supervision.

3. Changes in the trial field of power relations

The so-called adjustment of “trial power operation” in China's judicial reform is essentially to coordinate the relationship between two kinds of “competence” power, i.e., “trial power” exercised by judges and “trial power” exercised by specific subjects within the court. The relationship between the “trial power” exercised by the judge and the “trial supervision power” exercised by specific subjects within the court. The coupling of digital justice and trial supervision has changed the relationship and operation of these two powers.

3.1High visibility of trial power

Panoramic open-view structure makes the judge and his behavior is “high light display”, while the trial regulator is in a relatively hidden position in the digital space. This change does not mean that the power of the judge is emphasized and made visible, but rather that the judge, as the object of regulation by the trial regulator, follows a “principle of visibility”. To borrow Foucault's description, this reflects a change in the operation strategy of power: “In the tradition, power is visible, can be displayed, ...... subject to power can only remain in the shadows. They can only gain light from the part of the power that is conceded to them or from the refracted light of the part of the power that he temporarily possesses. But the power of regulation is exerted through its own invisibility. At the same time, it imposes a principle of forced visibility on its objects. In regulation, these objects must be visible.” In short, the panoramic open-view structure no longer makes a big show of power, but rather of the objects of power.

Giving high visibility to judges and their actions as objects of regulation is clearly an intentional goal in the reforms to modernize digital justice and trial management. For example, the reform requires the judicial mechanism to be “open” and “transparent”, so as to realize that “all kinds of performance behavior of judges can be prompted, traceable, traceable and supervisable”. In contrast, in the previous judicial working environment, judges were protected by both physical barriers and institutional thresholds. Under these circumstances, the judges and their behaviors were limited in what trial regulators could observe. Thus, in order to effectively enforce supervision, the hierarchical structure within the court was relied upon. In a hierarchical structure, trial regulators at higher levels (presidents, trial committees, etc.) are institutionalized roles that are repeatedly reinforced and made visible, while lower-level judges are often invisible.

Now, trial regulators are hidden in the shadows, no longer on high display. An example of this is the emergence of “silent management” or “silent support”, which has been spawned by digital justice. When a judge uses a digital system to work, if his or her behavior conforms to the preset norms and standards in the system, then the regulatory mechanism will not be visible and will not intervene. Only when the judge's behavior has violated the law or there is a significant risk of violation, the regulatory mechanism will intervene. However, silence is not the same as absence. Rather, the silent approach to regulation intentionally puts the judge on notice that the regulator may be present at all times and can intervene in the judge's trial activities at any time. Thus, the power to regulate a judge's trial is “visible but unknowable.” Visible” means that the supervisee ‘constantly witnesses the tall silhouette of the central watchtower that spies on him’; ‘unknowable’ means that the supervisee “does not know at any time whether he is being spied upon”. At this point, the power to judge and regulate becomes a “power that manifests itself as a gaze”.

3.2 Refinement of trial supervision strategies

In Foucault's description, modern power does not reveal and highlight itself through grand rituals, as traditional power does, but manifests itself as a set of microscopic techniques that match the panoramic structure. These micro techniques include the following: First, the unit technology, that is, the technology of unit positioning and hierarchical arrangement of the supervised person by using the method of allocating space and formulating charts. The second is organic technology, that is, the technology that encodes and controls activities. This can be done by using a schedule, timing movements, and requiring body postures. The third is creative technology, that is, a technology that accumulates time. For example, breaking down time into continuous or parallel segments requires that each segment should end at a specified time; Determine these time segments, decide the duration of each segment, and end with an assessment; Develop a more detailed series and prescribe appropriate exercises for each person according to their level, qualifications, and level. Fourth, combinatorial technology, that is, the technology of arranging and combining forces. In the context of discipline theory, these manifest themselves as micro-technical powers acting directly on the human body. It can be seen that modern power is meticulous in its exercise of the body, "not treating the human body as a seemingly indivisible whole, but dealing with it 'piecemeal' separately, exerting subtle coercion on it, and mastering it mechanically—movement, posture, attitude, speed." Moreover, it attaches importance to the continuous manipulation of the human behavior process, and the mode of control has become "uninterrupted, continuous coercion". "It supervises the process of activity rather than its outcome, and it is carried out according to a code that divides time, space and activity as closely as possible."

Although the panoramic and open-view structure that judges fall into is not a physical space, nor is it directly related to the physical coercion mechanism, the trial supervision strategy is also subtle. As mentioned above, measures such as online case-handling, live broadcast of court hearings, audio and video recordings of court hearings, and the establishment of a platform for judicial openness have enabled judges and their trial activities to be accurately located and traced throughout the process; Moreover, judges and trial supervision subjects have formed a fixed and clear position relationship in the digital space, which reflects the so-called unit technology. The built-in process setting, normative guidelines, and early warning prompts of the judges' case-handling platform, especially the node-based setting of the case-handling process, reflect the so-called organic and creative technology. Intelligent auxiliary case-handling tools such as the push of similar cases and the application of judicial big data are so-called combined technologies. The shift from pre-engagement and ex-post supervision to whole-process supervision and from static supervision to dynamic supervision shows that supervision is increasingly emphasizing the control of the specific process of trial activities. In short, with the help of digital justice, the power of trial supervision is presented as some subtle operational strategies. This strategy breaks down the trial process into a number of specific nodes or actions and immediates, dynamically, and automatically. These interventions, which may seem like "piecemeal", are in fact a subtle and constant compulsion.

3.3 The diffuse nature of adjudication and supervision powers

As mentioned above, judges, as objects in certain power relations, are bound by the trial supervisors. So, who is the custodian of the trial? Of course, we can point out that certain entities enjoy certain regulatory authority over judges and their adjudication activities based on the authorization of laws, normative documents, or policy documents, such as administrative leaders such as presidents and division presidents of courts, collective decision-makers such as adjudication committees and professional judges' conferences, and managers such as judicial disciplinary committees and judicial evaluation committees. However, if we understand the concept of power not only in the sense of "legal authorization", but also as "the relationship of power such as domination, control, or influence", so as to fully consider the constraints imposed by judges in the field of trial, then the scope of trial supervisors is even broader.

The panoramic and open-view structure constructed by digital justice makes judges and their actions highly visible. A similar statement in the reform document reads: "Relying on information technology, build an open, dynamic, transparent, and convenient sunshine judicial mechanism, establish and improve three major platforms for the disclosure of trial processes, judgment documents, and enforcement information, and widely accept social supervision." …… Strengthen legal, social, and public opinion oversight of the operational mechanisms of adjudication power. For judges, these broad and unspecific monitors, hidden behind digital judicial tools, become "the power of the gaze." This reflects not only the diffuse nature of the subject of power, but also the decentralization of power. "There is no single center of power,...... Power is dispersed throughout society, forming a large number of micro-centers. "Modern power is the accidental result of a multitude of tiny, unorganized motives in a genealogical way." Foucault does not adopt the traditional macro narrative to describe the question of power as a question of who has authority and commands, but focuses on the micro level of power, describing the operation strategy and implementation techniques of power. "Questions like 'who exercises power' can't be solved in isolation from questions like 'how power happens.' …… It is necessary to study the tactics, networks, mechanisms and the means by which all these decisions are carried out and forced to be implemented. "When people focus on the micro-operation of power, they will find that these power relations do not necessarily originate from a centralized, hierarchical subject. It may simply be an effect that occurs with the help of specific structures and strategies, and its subject is diffuse, decentralized, and unknowable.

Returning to the context of the operation of the power of trial supervision, the diffuse nature of the power of trial supervision is manifested in the fact that when judges perform their trial duties, they will clearly realize that they may be being watched by various subjects. Their actions are recorded by the system, and this information is then imported into databases and profiles. This information may then be consulted and analysed by various parties at some point. The scope of these entities is very broad, including both formal regulatory subjects within the judicial system and social supervision subjects outside the judicial system; It includes both participants in the judicial process and the public outside the judicial process. Although these entities enjoy different legal rights or powers, they can all use digital tools to peep, analyze and evaluate judges and their actions, and ultimately exert some kind of power on judges based on China's judge management system and judicial responsibility system. Judges have no way of locating them, have reciprocal information about their behavior, or even know exactly if and when they will be in the watchdog's hands. These entities are not elements in a single system and do not constitute a structured organization. They may form a contingent regulatory synergy, but there is no system of instructions that can be uploaded and issued. They may not have a common purpose, but may be motivated by different motives. Therefore, in the panoramic and open-view trial constructed by digital justice, judges will experience the pressure that is scattered all around but cannot be located, both imminent and uncertain, and jointly but decentralized.

3.4The superposition of the bureaucratic structure and short-distance supervision

The panoramic and open-view structure seems to weaken the hierarchical system and lead to a kind of flat management. The reform discourse also seems to have created this impression: "Improve the mechanism for the supervision and management of the whole process of informatization of trials." …… Promote the transformation of trial supervision and management from keeping an eye on people and cases and reviewing and approving cases at all levels to real-time dynamic supervision of the entire court, all staff, and the entire process, to ensure that decentralization and supervision are unified. "But this is only a façade and an illusion. At the same time, the reform discourse has shown the aspect of strengthening the bureaucratic supervision, and the advocacy of the review and verification system has also consolidated the original bureaucratic structure. Moreover, the panoramic open-view structure analyzed in this paper shares many elements with the hierarchical structure. For example, the two are similar in terms of judges' file management methods, judges' responsibility for wrongful convictions and performance appraisal systems, and requirements for standardization and standardization. In fact, the trial supervision mechanism based on the panoramic view structure is closely related to the bureaucratic structure in terms of the motivation for its creation. The original hierarchical structure has the problem of long-distance supervision. "After the judicial reform, court presidents and division heads cannot follow the traditional trial management method of managing and supervising by listening to the reports and trials of major and difficult cases by the judges undertaking the case, let alone personally understand the facts of each case. However, if the case is left unchecked, it can lead to disorderly or even out-of-control trials. "Digital technology has shortened the distance between regulators and the regulated, streamlined certain levels, and is a kind of short-distance supervision superimposed on the hierarchical structure.

4. The Normative Effect of the Operation of Adjudication Power

The trial supervision mechanism based on the panoramic view structure may have a long-term impact on the operation of the trial power. "Panoramic architecture is a magical machine, and no matter what purpose people use it for, it will have the same power effect." This power effect is the "normalization effect", which refers to the effect of power in setting norms and implementing checks for individuals, and measuring, comparing, differentiating, arranged, assimilating, and excluding them, resulting in narrowing the gap and uniformizing the whole. The normative criterion for judging individuals "is not the inherently right or wrong nature of their actions, but the place in which those actions place them on a hierarchical sequence that can be used to compare individuals with all other people."

This normative effect is gradually being revealed in the field of judicial power operation in China. It seems self-evident that as an act of public duty, judges' adjudication activities must of course conform to norms. Therefore, if a judge "intentionally violates laws and regulations" and "causes an error in adjudication due to gross negligence and causes serious consequences", then he or she needs to bear the so-called "responsibility for illegal trial". If a judge makes general mistakes in the preparation of documents, litigation procedures, determination of facts, and citation of legal provisions, but has not yet met the conditions for pursuing responsibility for illegal trials, he or she needs to bear the so-called "liability for defects in trial quality". However, the requirements for the standardization of trial behavior under the modern reform of digital justice and trial management are not limited to this, but go beyond the limit of preventing violations and errors. The trial supervision mechanism based on the panoramic and open-view structure is leading to "standardized" trials.

4.1Standardization of litigation processes

The standardization of the litigation process is expressed in the reform policy document as: "Improve the standards for the trial and enforcement process in the fields of criminal, civil, administrative, state compensation, and enforcement, promote the deep integration of standardization, standardization and informatization, and include each node of case filing, division, service, trial, collegiate, judgment, enforcement to case closure, and archiving into the scope of trial supervision and management", "Promote the key points of work, time limit requirements, and process standards for each node from case filing to case closure and archiving, Job guidelines and document styles are embedded in the information case-handling platform". For purely formal procedural matters such as document format and service method, there is no doubt that the standardization of the litigation process should be pursued. However, the so-called procedural matters also include some matters that are more substantive and have an important impact on the course of the case and even the substantive outcome, such as the materials and evidence conditions for case filing, the consolidation and division of cases, the recusal of adjudicators, jurisdictional disputes, the exchange of evidence and pretrial exclusion, and the application for pretrial conference. In dealing with these procedural matters, judges must not simply enforce statutory standards, but rather manage the case process meaningfully and facilitate the resolution of substantive issues by exercising statutory discretion. There is a danger that the standardization of the litigation process will promote the formalization and uniformity of the adjudication standards for judges to resolve the above-mentioned procedural matters, thereby compressing the judge's discretionary space and diluting their role as procedural managers.

4.2 Uniformity of substantive adjudication standards

With the help of digital justice, the standardization or standardization is not only aimed at procedural matters in litigation, but also points to the substantive adjudication standards. For example, in terms of the application of substantive law, the court's adjudication business platform is directly linked to the guide database and case database of case handling elements. "The Guidelines on the Elements for Handling Similar Cases have become the standard and yardstick for judges to assess wrongful cases, mainly to solve the problem of inconsistent application of law. …… The compilation of a guide to the elements of similar cases, leveraging the achievements of the construction of smart courts, can embed the review points and adjudication guidelines of similar cases into the intelligent auxiliary case-handling system, which is conducive to achieving a balance in the adjudication results of individual cases and realizing the unification of the adjudication scale of similar cases. "In the context of the Case Guidance System and the Reference System for Similar Cases, digital technology has been applied to the mandatory search of similar cases and the preparation of search reports to promote the unification of adjudication standards. The court has also used digital technology to establish a data monitoring mechanism for the same case and the same judgment, and built a judgment model for specific cases based on similar case data. When there is a major deviation from the judgment document produced by a judge, the system will automatically give an early warning to facilitate the court and division president's exercise of supervision and management powers. Based on the above examples, some researchers have observed that although the application of digital technology to the push of similar cases will strengthen the unity of adjudication standards, it may have obvious tension with the concept of substantive justice. For example, the Case Guidance System may lead to formalization of "the same case and the same judgment". In addition, with regard to the determination of facts, the application of digital means such as the guidelines for verdict evidence, the automatic extraction of evidence information, and the evidence standard database also have a tendency to lead to the standardization of adjudication and are suspected of deviating from the principle of free evidence.

4.3 Standardized pressure in the evaluation of judges

Normalization or standardization is not only a measure of behavior, but also points to the assessment of people. The archival methods used in China's trial supervision mechanism ("Case Quality Assessment System and Evaluation Mechanism" and "Judges' Performance Evaluation System and Performance Files") and the "Informatization of Evaluation Work" methods firmly bind the measurement of trial behavior with the measurement of judges themselves. In order to be able to implement evaluations efficiently and universally, the trial supervision mechanism is very focused on quantifiable indicators. The results of evaluations have become an important basis for judges' promotions and promotions, entry and exit of posts, distribution of bonuses, and evaluation of excellence. In recent years, assessment matters such as index composition, case weight calculation, and case saturation calculation have become more and more complex. The problem of "representation" of trial quality and efficiency indicators has also gradually become prominent. This mechanism "brings individual action together as a whole, which is both a field of comparison, a space for differentiation, and a criterion to be followed." …… It measures quantitatively, ranking each person's ability, level and 'nature' in terms of value. It creates a pressure that must be uniform through this measure of 'value-giving'." This "function of comparison, distinction, arrangement, assimilation, and exclusion" is the so-called "normative function".The evaluation mechanism is an important motivation for the standardization of judges' adjudication behavior. Because in the context of this evaluation system, for a judge with economic rational motives, the best behavioral strategy is to limit his substantive discretion and cater to formal standards, so as to reduce time costs, avoid potential liabilities, and improve the output of case handling, so as to win in quantitative evaluation.

In short, the coupling of digital justice and the trial supervision system has made judges fall into a panoramic and open-view structure, reshaping the power operation in the trial field. The resulting standardization effect not only makes judges' adjudication standards on procedural or substantive issues tend to be standardized, but also makes judges' adjudication activities recorded, quantified, and horizontally compared as the basis for personnel evaluation and mobility, thus creating uniform pressure on judges. Standardization or standardization in this sense only means the "formalization" and uniformity of adjudication standards, that is, the consistency caused by external factors such as supervision, assessment, and cost considerations, rather than the coherence that occurs through the exercise of substantive judicial discretion. This is not without contradiction with the proper institutional role of judges.

5. Return to judges' substantive adjudication duties

In order to evaluate and reflect on the above-mentioned issue of the formalization and unification of adjudication standards guided by the adjudication supervision mechanism based on the panoramic view structure, it is necessary to return to the question of "what is the adjudication duty of judges". In specific cases, the exact content of a legal norm is often not an "obvious fact". When applying the law and norms, judges may face both "empirical disputes" about the law (whether a certain legal provision exists) and "theoretical disputes" about the law (what exactly a certain legal provision requires). Therefore, judges with adjudication responsibilities should explore the purpose or gist of the legal practice and understand, apply, expand, amend, limit, or narrow the rules accordingly. The role of the judge's interpreter is subject to specific obligations and methodological limitations.

First, judges have an obligation to follow "past decisions", but not simply to copy established standards. "Law is an interpretive concept...... Judges generally recognize the obligation to perpetuate, rather than abandon, the practice in which they are involved. As such, they respond to their own beliefs and intuitions to form operational theories about the best explanation of their role in this practice. "However, when a judge interprets, applies and develops the law in a specific case, he or she should be in between the statements of fact that they are completely retrospective (conventionalism) or completely forward-looking rule-making (legal pragmatism). On the one hand, judges should recognize that the law should derive from past political decisions; On the other hand, it should be understood as "rights and responsibilities that are derived not only from past political decisions, but also when they derive the personal and political moral principles presupposed by these clear decisions, and can therefore be counted as legal rights or responsibilities". Therefore, the judge's interpretation is a "constructive or creative" interpretation. Judges should apply their purpose to the text by exploring the principles behind the rule of law, so that their interpretation is the best possible example.

Second, judges should, through their explanatory work, extend the practice of law in the form of judicial adjudication, so that their judgments are coherent at the level of principles. As a judicial ideal, the "base" of coherence should be a legal principle rather than a legal rule. Coherence does not equal formal consistency of judgments. Coherence opposes the formal adherence of judges to "precedents" and "conventions" and neglects to examine the substantive similarities or differences between current cases and existing adjudication standards. Because when judges do so, they fail to apply the law and follow "precedent" at the level of consistency of principles. Coherence is "something that is both more and less than consistent" and requires that a rule or legal practice be coherent and proven in principle. Judges sometimes need to follow the established adjudication standards for this purpose, and sometimes they need to abandon the existing adjudication standards. As a result, judges who accept coherence as their mode of adjudication sometimes appear cautious and at other times appear radical.

Finally, the interpretive work of judges should strictly follow the guidelines of methodology. For example, in the context of statutory law, judges should not only follow the method of interpretation within the meaning of the law, but also follow the method of interpretation beyond the meaning of the law and the method of interpretation that violates the meaning of the law in specific circumstances (i.e., the continuation of the law). "The task of legal methodology is to limit as much as possible the room for purely subjective judgment that ultimately means arbitrariness, and to make the explanatory activity as 'objectify' and 'rationalize' as possible." The function of methodology is to determine "what is the 'correct' method and what is not actually beyond reproach, and therefore it can be recognized as methodologically wrong". But the methodological rules are "by no means rigid, but flexible in direction". Methodological cues can provide direction assistance to the interpreter, either by examining whether the interpreter has missed important points in the thought process or by forcing the interpreter to explain the process. However, to think that the interpreter should blindly and uncreatively obey these instructions is to look at things too simply. "The methodology is only a structure, not an exclusion of the discretion of the judge. It is particularly important that, while judges respect the meaning and system of the law, they must also always explore the purpose of the law substantively: "The meaning and system often leave 'normative flaws'...... Accurately determine the intent of the law within the context of the context, and if necessary, obtain answers that go beyond or contrary to the context. Although judges should respect the adjudication criteria confirmed by "similar cases", similar cases themselves are not a source of law. Rather, it is not the precedent itself that binds, but the norms in which it is correctly understood or concretized". Therefore, it is always an unshirkable part of the judge's duty to evaluate whether the existing adjudication criteria are appropriate, and to change and reinterpret them when necessary.

In short, the judge assumes the role of interpreter, constructively interpreting the meaning of the law in a particular case. Judges should not formally abide by conventions, but should follow the guidance of methodology and pursue the consistency of judicial adjudication in principle. Taking the institutional role of judges as a reference, we will find that the formalization and uniformity of adjudication standards are worthy of vigilance. This is because this is the consistency of standards caused by external factors such as supervision, evaluation, and cost considerations, rather than the consistency of principles pursued when judges follow judicial methodologies and exercise their powers of interpretation. The coupling of digital justice and trial supervision system strengthens the supervision of judges, and leads to the same judgment and process standardization. In this sense, it strengthens the responsibility of the judge. However, this coupling is suspected of deviating judges from their substantive adjudication duties, weakening judges' motivation to creatively interpret rules and construct new adjudication standards, and even hindering the bottom-up and competitive legal evolution path in the judicial field. In this sense, it instead absolves the responsibility of adjudication.

The use of digital justice to strengthen trial supervision has undeniable positive significance, but its possible negative impact cannot be ignored. How will the coupling of digital justice and trial supervision system affect the operation of judicial power? How does it affect the production of legal knowledge? How to shape the institutional role of judges? Inquiries such as these need to be placed at the heart of the agenda of trial theory research. To what extent and in what way can judges and their adjudication activities be supervised in order to respond to the needs of China's judicial policy while respecting the objective laws of judicial adjudication? This has not been settled in the reform of the judicial responsibility system since 2013, so it needs to be seriously answered in the modernization and reform of trial management that will begin in 2023.