[author]JIANG Huiling

[content]

Developments of Traditional Judicial Laws in Digital Times

JIANG Huiling

Dean and Distinguished Professor, School of Law, Tongji University

Abstract: The digital times and intelligent social environment are new scenarios for the development of the judicial system. As the theory support of the judicial system, judicial laws (i. e. the judicial principles embodied within the scope of law), are being challenged in new ways. That means, old problems remain, while new ones keep emerging. Although a series of measures taken in judicial reform, which have enriched and developed the connotation of traditional judicial laws to a certain extent, they cannot solve all problems because of their complexity. Taking the construction of “smart court” as a research scenario, this paper systematically analyzes the connotation, expression, role, difficulties and solutions of the above judicial principles in the digital times. In view of the new problems encountered in online litigation, judicial intelligence, and internet applications, especially the impact on the main principles of court independence, substantive justice, procedural justice, judicial democracy, and judicial efficiency, this paper also provides some new insights. In the digital age, the core contents of traditional judicial laws still hold, but it needs to be enriched, developed and even corrected to adapt to the requirements of the times and the practical situation.

Key words: judicial laws; digital times; smart court; development

Digital justice, also translated as“digital justice”, encompasses the concept, mechanism and process of realizing justice in the digital age. At present, digital justice is still only a description of the judicial phenomenon in jurisprudence, and is often used in common with “intelligent justice”,“intelligent court” and “judicial artificial intelligence” to adapt to different contexts. The requirements of the judicial theory, the traditional law of justice. In judicial theory, the traditional judicial law includes impartiality, independence, efficiency, procedure, openness, democracy, etc., but because the term“law”cannot be included in the scope of the rule of law, so it is generally expressed as“principles”in the law of the court organization law, the three major procedural laws, etc.“Judicial principles”and so on, become the foundation, core and guidance of the judicial system. This paper repeatedly used trial independence, substantive justice, procedural justice, judicial openness, judicial democracy, judicial efficiency, judicial professionalism and other basic principles and the philosophical level of the law of justice to a large extent is the same, just in a different context of the two expressions.

The proposal of“smart court”is a redefinition of the judicial system under the environment of digital justice, which is applicable to a variety of judicial needs, including the improvement of judicial efficiency, convenient for the court and the parties involved in the litigation; enhance the quality of justice, to ensure the consistency of the judicial decisions with the law; realize judicial democracy, and improve the public's knowledge, participation and supervision. etc. What's more, the construction of smart courts mainly relies on the application of modern information technology, which will certainly reshape the shape of the traditional judicial system, and even affect the traditional judicial laws or judicial principles that play a supporting role. So, how is the social governance system in the digital age constituted? How do the judicial laws that govern the traditional form of the judicial system play a role in the“wisdom form”of the judicial system? Has there been a“mismatch”between traditional theories and the digital age? Can the traditional laws or principles of justice that have long been generally accepted by the international community be replicated? Does the shape of the judicial system in the digital age enrich and develop the judicial laws that operate in the traditional form of justice? In other words, how should the traditional laws of justice adapt to changes and develop in the smart society and digital era without compromising the realization of fairness and justice? This paper will explore these questions.

1.The judicial law problems reflected in the construction of“smart court”

In July 2016, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council issued the “Outline of the National Informatization Development Strategy”, which requires “the construction of smart courts, improve the level of informatization in the acceptance, adjudication, implementation and supervision of cases, promote the disclosure of information on law enforcement and justice, and promote judicial fairness and justice”. From this, the term “intelligent court” can be expanded to the broader category of “intelligent justice”. Generally speaking, China's intelligent judicial construction is represented by “intelligent court”, “intelligent prosecution” and “intelligent judicial administration”, which apply new generation of science and technology, such as artificial intelligence, to judicial and prosecutorial supervision, litigation services, and judicial administration. It applies new-generation science and technology, such as artificial intelligence, to the judiciary, prosecutorial supervision, litigation services, and judicial management, with the core of realizing the intelligence of the whole process and nodes of judicial business, and realizing the data, platform, and intelligence of the business and its process, so as to improve the accuracy, precision, and high efficiency of judicial activities. As digital technology and the theory of digital justice have entered a new stage of development, a new generation of science and technology has been further applied to various fields of intelligent justice, becoming an important driving force for realizing the rule of law in a comprehensive manner.

The continuous innovation of science and technology has provided sufficient technical support and guarantee for the construction of intelligent justice. Intelligent court is relying on modern artificial intelligence, focusing on justice for the people, fair justice, adhere to the laws of justice, institutional reform and technological change integration, information technology to support the judicial trial, litigation services and judicial management, to achieve the whole business online, the whole process of the law, all-round intelligent service of the people's court organization, construction, operation and management form. In the work of the people's courts, artificial intelligence-assisted systems have begun to replace part of the work traditionally done by manual labor. It has become the norm for parties to participate in litigation activities from a distance, and their litigation rights can not only be realized, but the quality of the realization has not been lowered, and the work efficiency and capacity of the people's courts have been greatly improved. In the construction of smart courts, the SPC has put forward a series of key informatization construction tasks around the Fifth Five-Year Reform Outline of the People's Courts (2019-2023) and the Five-Year Development Plan for Informatization Construction of the People's Courts (2021-2025). According to statistics from the Information Center of the Supreme People's Court, in 2021, courts nationwide filed 11,439,000 cases online, made 10,932,000 online payments, held 1,275,000 online court sessions, and exchanged evidence online 2,601,000 times. In the national courts to promote the application of the people's court commissioned appraisal platform, the realization of external commissioned appraisal tasks in the whole process of online processing; to promote the national court online guarantee and preservation of online processing, the establishment of a unified national electronic guaranteed system on-line use. From this, we can see that the current wisdom of the“Three Alls and Three Es”, i.e., “online handling of all business, disclosure of all processes in accordance with the law, and all-round intelligent service” and “networked, sunny and intelligent” has begun to bear fruit in the construction of courts. The construction of courts has begun to bear fruit.

To a certain extent, the construction of intelligent justice has changed the traditional way of work of the judicial organs and their staff, which in turn has had a significant impact on the form of expression, scope of action, and mode of operation of the judicial law. As the theoretical support and kernel of the existence of the judicial system, the judicial law is a theoretical guide to achieve fairness and justice and is incorporated into the relevant laws as the basic principles of judicial activities, including trial independence, substantive justice, procedural justice, judicial openness, judicial democracy, judicial efficiency, judicial professionalization and so on. In the process of the construction of intelligent justice, the interpretation angle, manifestation form, degree of role and guarantee mechanism of traditional judicial laws are changing. However, these traditional judicial laws should be adapted to the requirements of the new era while preventing deviation from the scientific direction; they should adhere to the Marxist theory of the rule of law while maintaining their innovative development in the digital era.

Among the many traditional laws of justice, justice and efficiency have always been the basic values pursued in judicial practice and the basic principles that have attracted the most attention. As a new form of court modernization, the technical way of realizing judicial value has been integrated into the intelligent court. The application of science and technology has largely improved the work efficiency of the judiciary, and various judicial artificial intelligence assistance systems can, to a certain extent, free the staff of the judiciary from repetitive and mechanical simple work. At the same time, it also breaks through the limitations of time and space, reduces the cost of the parties and the public to participate in judicial activities, and enhances the convenience of participating in litigation. However, as the core role of the judicial work of judges and prosecutors in the specific trial and prosecution work, must reflect the characteristics of highly specialized, professional, their experience in handling cases, work habits make their personal recognition and acceptance of the artificial intelligence system of the degree of difference, which also leads to digital technology and artificial intelligence products in the judicial“core business This also leads to the obvious lack of application of digital technology and artificial intelligence products in the“core business”of justice. At the same time, the direct application of artificial intelligence in the judicial adjudication process and even the emergence of the so-called“artificial intelligence judge”, and ultimately, because of its defects in the value judgment, emotional calculation and other aspects of the judicial justice has been questioned. The development of algorithms and big data technology, as well as the design and promotion of functions such as case search, risk point prediction, and real-time prediction of trial results, have also had a certain impact on the independent thinking and judgment of judges and prosecutors in the process of handling cases.

From the perspective of“judicial openness”, the development of AI technology has promoted a greater degree of openness in judicial activities. The trial process and the operation of the trial process need to be open and transparent, and the parties can query the trial process of the cases involved in the litigation through the online public platform, so as to realize the unity of judicial openness and litigation convenience. The court's trial activities are no longer limited to citizens in the real-world courtroom to participate in the audience or read the paper version of the judgment and ruling, but can use the network, through the digital dissemination of direct understanding of the trial process, which can better prevent backroom operations and judicial arbitrariness, and strengthened the public's supervision of the court's activities. The establishment of the adjudication documents network is to ensure that the citizens of the judicial decision of the conclusion of the decision, the right to know the reasons for the decision, and through the provision of precedent decisions of the data to help judges to form a relatively unified standard of decision, improve the level of reasoning of the adjudication documents. It should be said that modern technology “forced” justice to do all-round, no dead-end public, on the one hand, effectively meet the people's judicial needs, improve the credibility of justice; on the other hand, also urged the judges to regulate their judicial behavior, to maintain judicial integrity, improve the level of justice.

The free and open nature of the Internet greatly facilitates the dissemination of information, but also increases the risk of personal information leakage and damage to legitimate rights and interests. Judicial openness through the Internet to promote the trial process information, trial information, referee documents, implementation of information published on the Internet, and in addition to the public can know the contents of these information, there are many parties, witnesses, other litigation participants of personal information and even privacy, and can be easily copied by anyone, download, edit, disseminate, but also for a long time to save the Internet, so that the parties to the insecurity of the Internet, so that the public can be easily accessed, but at the same time, the risk of leakage of personal information and the legitimate rights and interests of damage. on the Internet, thus giving rise to insecurity concerns of the parties. How to deal with the relationship between online judicial disclosure and personal information protection is an issue that online judicial disclosure must face carefully. At the same time, the live broadcast of court hearings will also bring some problems, especially the pressure of public opinion on judicial decisions and the risk of “trial by public opinion”, and judges will be concerned about their image because the Internet records their personal speech and behavior vividly for people to watch at any time, thus affecting their concentration.

The process of building smart courts also faces the problem of coordinating procedural and substantive justice. “Achieving substantive justice in case adjudication through procedural justice in court trials”is an important task in the construction of the rule of law in China, while‘striving to let the people feel fairness and justice in every judicial case’ is the highest requirement for a fair, efficient and authoritative judicial system. The realization of substantive justice depends on the assignment of judges. The realization of substantive justice depends on the fairness and legitimacy of the judges to distribute justice, while the realization of procedural justice relies on the judges to follow the trial procedures and control of the trial process. Procedural justice is an ancient principle of the rule of law that has evolved over time. Although judicial artificial intelligence can help the transition from “feeling justice” to “visible justice”, it may also have problems such as algorithmic bias, algorithmic black box, algorithmic errors, and the subjectivity of judicial data collection, annotation, and interpretation, which makes it difficult to accurately model and calculate justice, and to exhaustively analyze justice. It is difficult to carry out accurate modeling and calculation of justice, and it is also difficult to exhaust the samples of justice, and it is impossible to overcome the dilemma of judging justice such as caring for human nature. Artificial intelligence through the class case search and class case push for the judge to provide reference program, through the“referee deviation early warning mechanism”for the judge to make a decision to remind, which undoubtedly helps to promote the unity of the standard of adjudication. However, this practice also exists because of the artificial intelligence class case judgment deviation, unable to value judgment and measurement and difficult to achieve substantive justice, and in the face of legal theory and legal application of controversy can not be resolved and other limitations of the problem. Therefore, judicial artificial intelligence can certainly play a trial auxiliary function, but must also pay attention to the possible contradiction with the traditional law of justice, and more to prevent the emergence of“vending machine type”mechanical justice.

In short, the traditional law of justice in the digital age and intelligent society will continue to appear new problems, new connotations, and with the traditional law of justice, there are contradictions, conflicts and even play a negative role. However, it is also these new situations, new changes, new problems, become the traditional judicial law to enrich the development of the new scene, new power.

2. The development of the connotation of the principle of trial independence

The principle of trial independence is expressly stipulated in China's Constitution and has been repeatedly reaffirmed in China's Organic Law of the People's Courts, Civil Procedure Law, Criminal Procedure Law, Administrative Procedure Law and other laws. Over the past 30 years, in the reports of the successive National Congresses of the Communist Party of China (CPC), there has almost always been a requirement to safeguard the independent exercise of judicial and prosecutorial power by the judicial organs (including the People's Courts and the People's Procuratorates). The Fourth Plenary Session of the 18th CPC Central Committee even deployed a number of specific reform measures to realize and safeguard the principle of independent adjudication, such as provincial-level management of personnel, property and materials, separate job sequences for judges, and a system of notification and accountability for overreaching into the records of cases. It can be said that trial independence, as a fundamental principle of the Chinese Constitution and a core value of the judicial system, has played an important role in safeguarding the statehood, professionalism and authority of judicial power and in grasping the direction of judicial system reform.

Judicial power is a power of judgment, an application of law by the power of the state based on established facts. The reality of the principle of independence of the trial landing point is the trial organization and the judge's independent refereeing, that is, the judge, as an independent and autonomous individual, in the process of adjudicating a specific case, based on the facts, with the law as the guideline, obeying the guidance of the professional conscience, free from the interference and control of external factors, and in the form of the trial organization and in the name of the people's court to make a decision.

In the digital age, will digital technology and the“environment”currently referred to as the digital society affect the independence of judges and the independent judgment of the people's courts? In other words, will the classical and traditional principle of trial independence meet new challenges and have new opportunities for development in the digital age and intelligent society?

In terms of the original intent of the application of digital technology, whether it is artificial intelligence or other information technology, the purpose is to help judges improve efficiency and accuracy and reduce their workload in their daily work and in making decisions. This is one of the core values of the construction of smart courts. With the further development of a new generation of science and technology, technical support for judicial decision-making has long since evolved from simple office convenience and auxiliary functions to the stage of directly or indirectly influencing substantive decisions on judges.

First, the independent judgment of judges in the digital age is more vulnerable to the influence of external information. Under the environment of extensive application of information technology, the value of judicial openness and transparency has been highlighted and amplified, and wider judicial openness, faster dissemination of information, and stricter supervision of public opinion will inevitably affect the independent judgment of individual judges as adjudicators. For example, when a case occurs, the Internet comments on the sky, some mainstream media or“big V”speech will have an important role in guiding the disclosure of the evidence of the case, the facts may not have been certified, and the network comments on the value of the orientation, the interest-oriented has fundamentally swayed many members of the community to judge, of course, will put pressure on the independent trial. will put pressure on the independent trial. Although judges are professionals with specialized legal training, the two-sided nature of public opinion monitoring, the social nature of judicial work, and the human nature of judges as natural human beings all indicate that judges are not in an absolute“legal vacuum”. Public opinion may help realize the impartiality of judicial decisions through the discovery of the truth, moral value supply, the same may also be in a variety of social relations and in the contradiction on the wind in the judge caused by mental pressure, and the formation of more, more complex impact and interference, may ultimately lead to the trial of the independence of the greatly reduced.

Second, the algorithm affects or even replaces the judge's independent adjudication to a certain extent. In judicial work, the use of artificial intelligence may lead to general algorithms or even large models of their own bias and errors, which in turn affect or replace the independent thinking and adjudication of judges. The Supreme People's Court, in its guiding document on the application of artificial intelligence, clearly pointed out that, regardless of the level of technological development, artificial intelligence shall not replace judges in adjudication. This requirement is actually aimed at precisely what the Supreme People's Court has proposed in its informatization construction outline, which is to build a trial support system based on big data intelligent services, and to realize that some courts will improve their trial support systems based on artificial intelligence and virtual reality, and to realize the precision and high efficiency of trial support. In judicial practice, some judges rely excessively on the“intelligent push”of similar cases, similar views or similar conclusions, thereby reducing their workload and improving efficiency. Some courts have stipulated that, in the internal oversight process, judges must give reasons when making decisions that are inconsistent with the conclusions of the intelligent push. Although this practice can maximize the reference role of intelligent push, it inevitably affects the motivation of judges to adjudicate independently, thus substantively negating the principle of trial independence. According to the requirements of trial independence, the judge for artificial intelligence preview screening of case information should still enjoy the right to independent judgment, and this point has been emphasized in the practice of many local courts. Intelligent case handling systems such as the “Judge Rui System” of the Beijing Municipal Higher People's Court, the Early Warning Platform for Different Judgments in the Same Case of the Jiangsu Provincial Higher People's Court, the Intelligent Specialized Trial Platform for Classified Cases of the Chongqing Municipal Higher People's Court, and the Judicial Big Data Management Platform of the Guizhou Provincial Higher People's Court, have played the function of influencing the judges' decisions to varying degrees. not to replace the judge's decision-making or direct case adjudication, but to play the efficacy of supervising the adjudication process and correcting the resultant errors with its technical ability of prediction and analysis.

Third, technical standards may replace legal standards. Competition between “technical standards” and “legal standards” is a long-standing phenomenon, and the result may be that the substantive connotation of trial independence is undermined or even defeated. The underlying logic of information technology and the application of artificial intelligence is technical norms rather than legal rules. With the deepening and expansion of the depth and breadth of the application of artificial intelligence in judicial work, the dependence of judges and even the entire judicial system on artificial intelligence will become stronger and stronger. This gradual increase in dependence coupled with the time and efficiency of the judge case pressure, resulting in many judges are more willing to choose to believe that the technical standards of artificial intelligence, and may even follow the technical standards of the “results of the calculations” are not consistent with the legal standard of suspicion. Worse, some judges may choose to reduce the weight of legal standards in the decision-generating process or abandon them altogether. This phenomenon will cause the traditional judicial organization and the judge's judgment and authority to gradually decline in the technological control, and artificial intelligence products begin to influence the construction and operation of the judicial system. Although products may claim to have incorporated legal standards and to have included legal experts in the design process, the degree of incorporation is actually determined by technical logic and technical standards. In short, the concession of legal standards to technical standards directly affects the realization of the principle of trial independence.

The principle of judicial independence is indispensable to the construction of a State governed by the rule of law, but how can the challenges in the context of the digital age be met? First, to guide and constrain the direction of judicial openness. It is necessary to establish a corresponding system to strengthen the guidance and constraints on public opinion after disclosure. This practice is also recognized in other countries, as it is a concession of freedom of expression to the principle of trial independence, and a coordinated measure of value coexistence. Second, the principle of the rule of law should be followed in the design process of judicial AI products. Legal experts should be fully involved, and technical standards should be treated as objective standards for factual determination, while legal standards should be used as the basic basis for judges to make judicial decisions. Third, the establishment of a judicial review of algorithmic technical standards or algorithmic litigation system. Although this may seem to be too deep an involvement of judicial standards in algorithmic standards, with the increasing influence of algorithms on people's daily lives and even judicial standards, the establishment of stricter standards and stricter procedural safeguards is in line with the principles of the rule of law and the direction of development.

3.The correction of entity justice in the digital age

The Fourth Plenary Session of the 18th CPC Central Committee determined the judicial justice standard of “factual findings in line with the objective truth, the outcome of the case in line with substantive justice, and the process of handling the case in line with procedural justice”, and explained the relationship between procedural justice and substantive justice, i.e., “through the procedural justice of the court trial to realize the substantive justice of the case adjudication”.

The“substantive justice”repeatedly mentioned here is actually synonymous with the “substantive justice”often expressed on other occasions. It is generally recognized that judicial justice includes both substantive justice and procedural justice. The so-called substantive justice refers to the resultant justice realized through the litigation process, i.e., the ruling or treatment of the substantive rights and obligations of the litigants is consistent with the rights and interests of each individual. In judicial practice, substantive justice requires that judges must uphold the value of fairness and justice, accurately ascertain and determine the facts of the case in accordance with the law, correctly apply the law, and engage in rationalist logical reasoning to make decisions independently, prudently and objectively. As the entity justice is the real life exist in people's heart of the justice standard, has a greater subjectivity, and the judicial decision of the entity justice based on the fact belongs to have occurred, difficult to reproduce and is unique facts, so also has a large degree of uncertainty. At the same time, the background of the times, scientific and technological progress, social values, human understanding are also in the process of constant change, which makes it more difficult to form a“substantive justice” consistent, certain, solid state.

It is also because of this, people can only put the rule of law in the process of substantive justice under the norms, with a view to forming a relatively certain standard, rather than letting substantive justice beyond the existing legal boundaries, procedural framework. From the perspective of the current development and application of digital technology, the digital age has undoubtedly exacerbated this contradiction between certainty and uncertainty again, and increased the difficulty of distinguishing between justice and injustice, righteousness and injustice, right and wrong in specific scenarios. There are outcomes that may be unjust in traditional societies but may be unavoidable in the digital age and smart social environments, thus turning into acceptable and just outcomes.

The full realization of physical justice in Internet justice is a successful example of judicial reform. China set up the Hangzhou Internet Court in August 2017, and the Beijing Internet Court and Guangzhou Internet Court in September 2018, realizing the expansion from simple online disclosure of judicial information in the past to the construction of specialized trial institutions on the Internet. The 2020 work report of the Supreme People's Court formally put forward the concept of “digital justice”, emphasizing the need to“consolidate the concept of digital justice”and to“consolidate the concept of digital justice”. The concept of “digital justice” was formally proposed in the work report of the Supreme People's Court in 2020, which emphasized the need to “consolidate and expand the results of the construction and application of smart courts during the epidemic, improve the Internet justice model, promote digital justice with precise justice, and strive to achieve a higher level of fairness and justice in the new era”. Since then, the Supreme People's Court has mentioned“digital justice”many times on official occasions and in documents. On October 15, 2020, it issued the“Report on the People's Courts' Strengthening of Civil Judicial Work to Serve and Guarantee the Continuous and Healthy Development of the Economy and Society in accordance with the Law”, and on November 2, 2020, it issued the“Circular on the Conscientious Study and Implementation of the Spirit of the 19th Plenary Session of the Party The Circular on Conscientiously Studying and Implementing the Spirit of the Fifth Plenary Session of the 19th CPC Central Committee”, both of which proposed to ‘strengthen the construction of Internet courts, build a world-leading Internet justice model with Chinese characteristics, and create a higher level of digital justice’.On January 11, 2021, the then President of the SPC, Zhou Qiang, emphasized in the Conference of Presidents of Higher People's Courts across the country the need for digital justice to push for the realization of a higher level of fairness and justice. In this context,“digital justice”can be understood as the digitalization of dispute resolution efficiency and the realization of a higher level of justice. Digital justice is the transformation and development of the traditional concept of justice in the digital era, and is the embodiment of a higher level of demand for fairness and justice in a digital society, an integral part of the judicial civilization of a digital society, and the highest value goal of digital justice.

To realize substantive justice in individual cases, the most important thing is to accurately determine the facts of the case and correctly apply the law. Apart from objective factors, this depends to a certain extent on the judicial capacity of judges. Judicial digitization plays a very important role in enhancing the ability of judges, accurately determining facts and correctly applying the law. For example, the Chengdu Intermediate People's Court through the“Rong Yi v.”platform convergence and integration of electronic files, intelligent trial applications, support for the evidence display and the generation of reports on the evidence, legal and case recommendations and other functions, for the judge to provide intelligent assistance in the trial. For example, the Shangcheng District People's Court of Hangzhou City was identified by the Zhejiang Provincial Higher People's Court as a pilot court for the whole-process intelligent trial of financial loan disputes, and released and launched the AI judge's assistant “Xiaozhi”, the first of its kind, characterized by “human-machine integration, intelligent trial and speedy judgment”. The“Phoenix Financial Intelligent Trial”model promotes the whole-process intelligent trial model from the experimental stage to application practice. The Shanghai Financial Court activated the trial synchronous interpretation system in December 2019 to help foreign litigation participants eliminate language communication barriers in case trials. Jiaxing Intermediate People's Court uses “3D+AI+Blockchain”technology to digitally scan traditional physical evidence, combine it with artificial intelligence technology for modeling and imaging, and use blockchain technology for real-time deposit of model data to establish a“physical evidence room on the cloud”that integrates data collection, data uploading, and data management. Physical evidence room”. The work done by courts around the world does not belong to substantive justice, but it can have an impact on the realization of substantive justice through digital technology.

4. Procedural Justice Standards for Online Litigation

Procedural justice is the cornerstone of judicial authority, the guarantee of judicial justice, and the outward expression of judicial activity. From the ancient principle of natural justice (emphasizing that you can't be your own judge, listen to both parties, etc.) to the contemporary “justice must be achieved in a visible way”or“Miranda rules”, are an expression of the principle of procedural justice. China's Criminal Procedure Law, Civil Procedure Law, Administrative Procedure Law and other procedural laws and judicial interpretations, including even legislative procedures, administrative procedures and other work procedures, are the normative carriers of procedural justice. Relative to other legal activities, the litigation procedure norms established for judicial activities are often the most detailed and strict and are subject to the strongest supervision in the implementation process.

Into the digital age, the traditional litigation procedures still exist, but also evolved another previously unseen “online litigation” procedures (or “online litigation” “Internet trial”) ”,“Internet trial”, “network court”, in English, online litigation), and has led the people's courts to realize “full-process online case handling”. The whole process of online case handling is the Supreme People's Court's work requirements for the national courts, specifically expressed as“all business online, the whole process of legal disclosure, a full range of intelligent services”. The establishment of the“three full models” and the online litigation system marks the basic completion of the national intelligent court information system. Full-process online case handling is not only the core of judicial informatization and smart court construction, but also a key step in promoting the comprehensive supporting reform of the judicial system, which can help to open up pain points, blockages and difficulties in the case handling process. At the same time, online litigation and full-process online case handling have changed the operation and expression of judicial activities in many aspects and links, changed the experience and feelings of judges, parties and the public about the judicial process, and also put forward new requirements and enriched new contents for the traditional principle of procedural justice.

4.1Exploration and basis of online litigation

Article 16 of China's Civil Procedure Law stipulates that, with the consent of the parties, civil litigation activities can be conducted online through the information network platform and have the same legal effect as offline litigation activities. Although the introduction of this amendment is related to the new crown epidemic experienced by our country, the decisive role is played by the application of modern science and technology and the need for judicial efficiency, as well as the successful experience gained from the previous judicial reform. The establishment of online litigation has not only made it easier for parties to litigate and for the people's courts to adjudicate but has also brought about changes in specific operational procedures.

The Civil Procedure Law does not contain specific provisions on the operational procedures of online litigation, which have been gradually established in a series of judicial interpretations formulated by the People's Court. The concept of “Internet justice” was gradually formed on the basis of the pilot project of the Zhejiang Higher People's Court to hear Internet-related cases at the grass-roots level, which was launched by the Higher People's Court of Zhejiang Province in 2015, and the“Zhejiang Court E-commerce Online Court”. Subsequently, the Central Reform Group decided to set up three Internet courts in Hangzhou, Beijing and Guangzhou in 2017 and 2018 respectively, and the Supreme People's Court issued the Provisions on Several Issues Concerning the Trial of Cases in Internet Courts in September 2018, which formally established the working framework of“handling cases involving the Internet in an Internet manner”. framework, requiring that litigation activities such as case acceptance, service, pre-litigation mediation, evidence exchange, pre-court preparation, court hearings, and declaration of decisions be completed online. This judicial interpretation and the operating rules formulated by each Internet court together provide a basic procedural basis for online litigation.

After three years of practice, the Supreme People's Court issued the Rules for Online Litigation in People's Courts in June 2021, and explicitly stipulated that:“People's Courts, parties and other litigants may rely on electronic litigation platforms to complete all or part of the litigation process, such as case filing, mediation, exchange of evidence, inquiries, court hearings, and service of judgment, online via the Internet or a dedicated network. (c) The online litigation activities are the same as the offline litigation activities. Online litigation activities have the same legal effect as offline litigation activities.” The rule also establishes the legal status of “asynchronous trial mechanism” (also known as asynchronous trial mechanism), and expands the scope of application of this new trial mode from Internet courts to local people's courts. The online litigation mode of asynchronous trial represents the results of the transformation of trial procedures after the current information technology is embedded in the judiciary, and it embodies “judicial multilateralism”with the characteristics of pluralistic governance by supplementing the traditional trial mode.

Online litigation has given rise to the Internet Court and the revision of the Civil Procedure Law, which has already demonstrated the overwhelming advantage of online litigation in terms of efficiency and its vitality in terms of procedural justice. However, the mode of operation of online litigation, which relies exclusively on information technology, usually triggers a different procedural experience for the parties as compared to traditional offline litigation, even though none of the procedural steps stipulated in the law have been successful. For example, the application of online litigation procedures is premised on the parties' voluntariness and respects the parties' right to procedural choice in order to ensure that litigation rights built on IT applications are effectively exercised. However, if a party fails to log on to the system and does not apply in advance to switch to offline proceedings, will the people's court deal with the matter directly on the basis of “refusal to appear in court”? For example, the “pre-court conference” aspect of the asynchronous trial mode has not been highlighted, and the advantages of the asynchronous trial mode have been limited by the offline mode of operation of summary proceedings and small claims, making it difficult to give full play to its functions. In addition, there are practical difficulties in realizing the interactivity of the submission and review of electronic litigation materials, and the court's offline review after the fact will affect the efficiency of the litigation and the continuity of the trial.

4.2 Protection of Litigation Rights of Online Litigants

The Online Litigation Rules of the People's Courts issued by the Supreme People's Court stipulates that the“principle of rights protection”shall be followed to fully protect the litigation rights of the parties, and particularly emphasizes the obligation of the people's courts to prompt, explain and inform the parties in all aspects of the litigation process, and requires that the litigation process shall not be reduced at will and the litigation rights and interests of the parties shall not be jeopardized. The following is just a summary of the online litigation need to pay attention to the protection of the rights and interests. The following are just a few of the important litigation rights that need to be protected in online litigation.

First, litigation in person. Proceedings are, on the one hand, the responsibility of the people's courts and, on the other hand, the litigation rights of the parties involved. The people's court judicial responsibility system reform requirements to do“by the trial judge”, the core content is to emphasize the judge's direct trial, including directly engaged in the court investigation, examination of evidence, hear the debate, independent ruling. The litigation of the parties to the right to experience is reflected in the parties directly in front of the judge to state their reasons, evidence (face-to-face confrontation), to express their views on the debate, to be sure that the judge in the courtroom to understand their own reasons, and so on in many aspects. However, online litigation has brought about a different understanding of the personal nature of litigation. First, litigation has changed from the traditional “face-to-face” to “screen-to-screen”, and whether the“screen-to-screen”experience is sufficient to meet the standards of procedural justice in offline litigation needs further study. Further research is needed. Secondly, in order to eliminate the party's questioning of the personal experience, and to ensure that its litigation rights are not impaired, the Online Litigation Rules of the People's Courts stipulate at length the party's right to choose online litigation, online to offline litigation, mixed litigation of online and offline litigation of both parties, the party's repentance of online litigation, and part of online litigation and other circumstances of the handling of the case in an attempt to maximize the realization of the party's requirements of personal experience of the litigation. Thirdly, if the parties are unable to synchronize interaction to complete certain aspects of the online litigation process, the parties must agree that the court can take a non-synchronous way to carry out the litigation. Online litigation, the implementation of asynchronous trial as to meet the requirements of the parties to the litigation. Whereas offline proceedings are generally a single step, online proceedings may involve multiple steps at the same time. Online litigation mode, the principle of judicial proximity has not been broken, the case is heard directly by the judge has not substantially changed, the change is only the place of trial, environment and carrier, the trial of the procedural aspects and the parties to the litigation rights have not been any derogation, but instead to provide a more convenient and efficient way to realize.

Second, the right to evidence. The quality of the evidence program is related to the factual basis of the case, which in turn affects the correct application of the law. First of all, regarding the evidence exchange procedure in online litigation, it is generally believed that the evidence exchange conducted synchronously online provides a higher degree of protection for the right to evidence than non-synchronous online exchange. This has been reflected in article 14 of the online litigation rules of the people's court, that is, “all parties agree to the online evidence exchange, but cannot agree on the specific way, the synchronized online evidence exchange shall apply”. Secondly, the judge in the online litigation also has to determine the authenticity, legitimacy and relevance of the electronic evidence, and therefore needs to address the authenticity of the electronic data stored by the blockchain technology, but for the submission of the original evidence and the original objects, the parties need to provide reasonable reasons and grounds. This system of the court determining whether to provide the original material will have an impact on the parties' right to evidence, but if the other party does not object to the consistency of the electronic evidential materials with the original material and original material, the people's court may find that the formal requirements of the original material and original material are met. Finally, the right to consent to electronic service also has a direct relationship with the realization of the litigation rights of the parties. The Rules for Online Litigation of the People's Courts provide that, with the consent of the person to be served, the people's court may, through the service platform, serve litigation documents and evidentiary materials to the electronic address of the person to be served, such as an e-mail address, an instant messaging account, or a special account for the litigation platform. While respecting the parties' right to consent, the people's courts have interpreted the right to consent more broadly on the premise of fulfilling the obligation to inform and have even included the case of an electronic address voluntarily provided or confirmed by the person to be served, with the aim of actively promoting the development of online litigation.

Third, special protection. The special protection referred to here emphasizes the need to provide special assistance to special groups when they participate in online litigation. The Online Litigation Rules of the People's Court implement the principle of convenience and benefit to the people, and at the same time reduce the litigation costs of the parties, take into account the special needs of different groups in the process of participating in online litigation, and provide special services to special groups such as minors, the elderly, the handicapped, and the information disadvantaged groups, so as to help them to enjoy the convenience brought about by information technology in online litigation, instead of being blocked outside the “digital divide”. The “digital divide”. If the parties concerned are unaware of, unfamiliar with, or incapable of applying the judicial application of information technology, the litigation rights carried by information technology will be difficult to realize successfully. Therefore, online litigation especially requires judicial organs to give special consideration to the participation of minors, the elderly, the disabled and other groups in online litigation, increase the court's obligation to provide tips and explanations, and establish a more comprehensive, thoughtful, and popular technical guidance and litigation guidance, so that the intelligent justice can truly become a “universal justice”, and to prevent these groups from being subjected to the “digital divide”due to the limitations of their own conditions and rights. The right to prevent these groups from litigation due to the limitations of their own conditions and be impaired, but also do not let the procedural justice in the shadow of the “intelligent” discount, so as to fully reflect the humanistic care of the judicial system in the digital age.

4.3 Guaranteeing procedural justice with online litigation order

Procedural justice is not only a litigation right of the parties, but also a force of the judicial order. In the online litigation, the traditional litigation activities by the physical space limitations were completely broken, the court can become an abstract concept without physical space, exists in the invisible. However, this does not affect the realization of procedural justice in the process of relying on the litigation order, because the important expression of procedural justice is the orderly litigation activities.

First, to maintain the normality of litigation activities. Whether online or offline, the normality of litigation activities is the basis of its authority and a prerequisite for the realization of procedural justice. If there is any abuse of rights by the parties, intentional delay in litigation, or maliciously increasing the costs of other parties, which affects the process of litigation and jeopardizes the legitimate rights and interests of other parties, procedural justice will cease to exist, and there is no way to talk about litigation in good faith. Some parties have already agreed to online litigation in advance, but later do not participate in online litigation activities without justifiable reasons, which will result in the waste of judicial resources and increase the cost of litigation. In addition, the authentication of litigation participants in online litigation is also a serious system, which is a basic measure to prevent false litigation, but online authentication is more difficult than authentication in offline courts. Strengthening the standardization of online litigation activities can, to a certain extent, help realize and safeguard procedural justice in the digital age.

Second, enhance the technical guarantee of online litigation. In online litigation, the technical guarantee system can be regarded as the technical incarnation of procedural justice. Although the litigation platform management and online litigation technology standards are not part of the litigation law, but in judicial practice, advanced technology, perfect protection are online litigation procedures can be stable and smooth conduct of the premise, but also to achieve procedural justice of the technical cornerstone. With perfect technical application rules, technical security and corresponding constraints and supervision mechanisms, platform neutrality and procedural justice can be realized to a large extent.

Third, network security is the foundation of procedural justice. Trial work is an important national legal activity, which is related to national security, state secrets, commercial secrets, personal privacy and personal information rights. The safety and reliability of online litigation technology can effectively protect the information security of online litigation data and provide security conditions for the realization of procedural justice.

4.4 Improving the experience of parties in online litigation

An important component of procedural justice is the image of the people's courts and the sense of experience of the parties and the public in the litigation process. In offline litigation, the parties' long-term behavioral habits have formed an almost fixed pattern of experience, for example: the sense of space and distance between the trial bench and the parties' seats in the courtroom makes the courtroom atmosphere solemn; the court staff's neat appearance and behavior, and the demonstrative nature of the courtroom; everything that happens in the courtroom is within the vision of the judge, the parties, and the spectators, which is a strong sense of experience, and it also allows them to supervise or prevent the occurrence of certain irregularities; the controllability of witnesses in court is strong, the convenience and immediacy of evidence production and cross-examination is instantly realized, avoiding unnecessary challenges. However, in online litigation, the parties visible screen single, narrow field of vision, the courtroom environment is not high degree of knowledge, can not be excluded from the screen outside the possible occurrence of irregularities, unserious situations. Although these circumstances do not necessarily lead to the judge entity judgment bias, but the image of judicial justice in the public mind will inevitably be discounted. Therefore, some experts and scholars have also put forward some suggestions to further improve the online litigation system, for example, to deal with the online litigation activities of the parties offline online is not in the same time slot, to enhance the effectiveness of the judiciary's intelligent services; for the virtualization of online litigation activities, mobility and other characteristics of the online litigation activities, a comprehensive and sophisticated design of online litigation implementation rules; for the online litigation of the subject matter of the litigation of the high degree of virtualization, the rights and interests of the strong demand for immediacy, rights and interests protection. In view of the high degree of virtualization of the subject matter of online litigation, the strong demand for immediate protection of rights and interests, and the low dependence on physical space for protection of rights and interests, explore and improve the new type of implementation mechanism of online litigation and so on.

5. Adaptive Changes in Judicial Democracy and Judicial Efficiency

Judicial democracy is divided into a broad sense and a narrow sense. Judicial democracy in the broad sense refers to the process in which various public opinions from litigation channels or extra-litigation channels that can have an impact on the decision of the adjudicator play a role in accordance with the statutory litigation procedures or other work procedures; while judicial democracy in the narrow sense refers to the jury of lay judges, also known as the trial participation system or jury system. The use of the concept of judicial democracy in the context of the contemporary rule of law no longer mechanically follows this criterion of delineation; rather, the jury system, judicial openness, communication of public opinion, supervision by the National People's Congress, and monitoring by public opinion are all taken as forms of judicial democracy, and a variety of measures are taken in the course of the work of the courts to jointly promote them with a view to realizing public opinion to the fullest extent possible in the course of judicial activities. Article 11 of the Organic Law of the People's Courts stipulates that one of the basic duties of the people's courts is to “safeguard the people's right to be informed of the work of the people's courts and to participate in and supervise their work in accordance with the law.” In the digital age, the various forms of judicial democracy are undergoing major changes, and information technology is reshaping the image of judicial democracy in China. This paper only selects judicial openness and public opinion communication to be slightly analyzed, to explain its new characteristics in the digital era, and at the same time to explain the new needs of judicial efficiency in the digital era.

5.1 Judicial Openness

Judicial openness is a judicial principle stipulated in China's constitution, is a basic system of litigation activities, but also an important form of judicial democracy. Therefore, some scholars have suggested that judicial openness is the largest judicial democracy, but also the “safest” judicial democracy. The reason why it is described as the safest, because judicial openness generally will not have a direct, head-on collision with other powers, but completely with the help of “sunlight” as an objective medium to realize the people's “static participation” in judicial activities, and “Sunlight” this ‘antiseptic’ to a large extent can exclude outside interference, supervision of judicial activities. With the wide application of Internet technology, the people's courts have established four major platforms for judicial openness through the Internet, namely, the open platform for the trial process, the open platform for referee documents, the open platform for execution information, and the platform for live broadcast of court hearings. Taking the live trial broadcast platform as an example, in the live trial broadcast, the public can enter the “courtroom” at any time to observe the trial, and can even make comments through certain platforms, and these comments are visible to everyone. As a result, these comments may ferment in society, forming a certain orientation and influencing society's evaluation of the administration of justice.

It goes without saying that the role of information technology in judicial openness has both positive benefits and inevitably entails certain risks. The traditional judicial openness generally refers only to the process of hearing and decision-making documents publicly announced, while the digital age of the decision-making documents are no longer limited to the judge in a court of law in the verbal pronouncement, but placed on the Internet to accept almost unlimited access at will. The court hearing activities have not been limited to the audience's naked eye observation, but at any time to see, everyone can use the live online. Such judicial openness although can let more people understand the trial, but also will undoubtedly let the party concerned about the proliferation of their own information, but also let the judge to take into account the public after the personal image and social commentary and uneasy, and the extreme will even give up their own independent refereeing to the “media trial”. Therefore, the system of judicial disclosure in the digital age needs to be reorganized. At the same time, when a case is heard without a live broadcast, the public may not be able to enter the online proceedings to observe the proceedings because they do not have the right of access, which is also a problem that needs to be improved.

5.2 Communication of Public Opinion

All kinds of litigation cases are decided by statutory trial organizations based on facts and laws, instead of directly appealing to public opinion, but this does not mean that the mechanism of “public opinion communication” in judicial work should be excluded. The courts and the public can exchange views directly or indirectly through proper communication mechanisms, so that court officials, especially judges, can understand public opinion, understand and respond to the needs and expectations of society for justice, and through appropriate means, let more members of the public understand the process of the court's judicial decision-making process, so as to improve their understanding of the functions and status of the courts, thus enhancing the credibility of the judiciary. The “public opinion communication” mechanism of the courts in China is relatively well-developed, and this is also an important element of the people's judicial tradition. The Opinions on Further Strengthening the Work of Public Opinion Communication and the Notice on Strengthening the Work of Public Opinion Communication through the Internet, both issued by the Supreme People's Court in 2009, require that people's courts at all levels, in the course of determining their work ideas, perfecting measures to facilitate people's access to the courts and evaluating the effectiveness of the administration of justice, should, according to their needs, adopt a variety of ways and means to broadly solicit opinions and suggestions from deputies to the National People's Congress (NPC), delegates to the Chinese People's Political Consultative Conference (CPPCC), members of the democratic parties and social organizations, experts and scholars, other legal practitioners, and the public. In particular, they should go deep into enterprises, communities and villages to understand the opinions and voices of the grassroots, so as to improve their work and solve problems.

In the digital age, the communication of public opinion in the judicial field has become more convenient and effective. In the social structure supported by Internet technology, the expression of judicial public opinion is realized through autonomous, decentralized and individual ways and channels, and becomes “public opinion” in the society, which is then transformed into a kind of influence. Despite the fact that we have now moved from the Internet era to an intelligent society and the digital era, the impact of the latest developments in science and technology on judicial democracy and the communication of public opinion still exists, reflecting a very similar problem: how to ensure the realization of judicial democracy while minimally affecting the independence of the judiciary, and minimizing the possibility of judges being affected by public opinion and public opinion and misinterpreting the original intent of the legislation.

The professionalization of judges is an essential attribute of the judicial system and a condition for the realization of the principle of the rule of law. Unless they encounter particularly strong public pressure or insurmountable obstacles, professionally trained judges are capable of maintaining their composure and independence, and are generally not subject to “trial by media”. The media and public opinion are effective ways to monitor judicial activities, but whether through information technology or traditional means, it is necessary to respect the laws of judicial activities and to prevent public opinion from affecting judicial impartiality. Today, with the widespread application of information technology and mobile Internet, the way judicial activities are presented to the public has changed significantly, and the way justice is monitored by the public is very different from before. Public opinion in an intelligent social environment has both positive and negative effects and is characterized by fast dissemination and wide radiation. In addition to the fact that China has not yet established a strict “no reporting order” system, the courts and administrative authorities are often confronted with the blurring of the boundaries between obstruction of litigation and normal public opinion supervision in their management of media reports and public comments. The problems of judicial openness and public opinion communication that existed in traditional societies still exist in the intelligent society of the digital age and have taken on entirely new characteristics.

5.3Judicial efficiency

The socialist rule of law system with Chinese characteristics includes an “efficient system for the implementation of the rule of law”. Since the 16th National Congress of the Communist Party of China (CPC), the construction of a “just, efficient and authoritative” socialist judicial system has been the goal pursued by the central government in its deployment of judicial reform. Among the requirements of “justice and efficiency”, justice has always been prioritized, but judicial efficiency also plays an extremely important role in concrete work, and is easy to assess, easy to quantify, and externally visible. Party and government leaders attach great importance to this, the parties are also very concerned. Therefore, China's judicial organs to improve judicial efficiency to take a variety of measures, and even should be borne by the parties to the cost of time is also added to the judicial organs, the parties to the cost of litigation and the judicial organs of the judicial resources consumed by the same.

It is because of the judicial efficiency is “fair, efficient, authoritative” three standards in the only easy to quantify the standard, so even after entering the digital age, intelligent society, for the assessment and evaluation of judicial efficiency not only did not relax, but due to information technology has greatly improved the utilization of time and strengthened. In judicial work, is it true that the higher the efficiency, the better? This article does not intend to research and demonstrate the conversion relationship between efficiency and justice, but one thing is beyond doubt, that is, high efficiency itself has both positive and negative sides. If efficiency is enhanced by the rational allocation of resources rather than by mal-allocation, “efficiency” becomes a positive parameter. But if only because the level of science and technology can bring time and money savings, and legal thinking process, offline court process, the judge thinking process did not change with the arrival of the digital age, and even continue to limited judicial resources to deal with faster growth of cases, even with science and technology to bring the “dividend”! Even with the “dividend” brought by science and technology, the requirement for judicial efficiency will become a negative parameter, and ultimately even affect the realization of judicial justice.

While it is undoubtedly correct to strive for greater judicial efficiency, should there be a limit to judicial efficiency in the face of resource (cost) constraints? Even in the digital age, this question still needs to be answered. The Opinions on Regulating and Strengthening the Judicial Application of Artificial Intelligence, issued by the Supreme People's Court in December 2022, clearly states that it is necessary to “significantly reduce the transactional workload of judges” or “substantially reduce the transactional workload of judges”, but at present However, at present, the workload of the judiciary is overloaded, and the various assessment indicators do not match the law of adjudication. In the current situation, where the growth rate of the caseload is much higher than the growth rate of judicial resources, and where there is no change in the system of trial limits and no increase in staffing, judges are in a rather embarrassing predicament. Therefore, under the general goal of building a fair, efficient and authoritative socialist judicial system, the standard of efficiency still needs to be defined in the context of the traditional laws of justice. In the power structure of the state, judicial power, as the last line of defense of justice, emphasizes justice above all else. Efficiency is certainly an important value in the products of public power, but in the case of judicial public goods, when the pursuit of efficiency conflicts with the realization of justice or when weights need to be arranged, efficiency should be listed after justice. Therefore, justice can be likened to the “brakes” of efficiency, and the limits of efficiency are set according to the requirements of justice. Especially in the case where the conditions for improving efficiency are not yet sufficient and the number of litigation cases continues to increase, it is in fact a relative increase in the requirements for judicial efficiency, thus exacerbating the contradiction between justice and efficiency. Although the application of modern science and technology has alleviated this to a certain extent, the challenge posed to the traditional laws of justice still exists. Therefore, in accelerating the improvement of modern science and technology judicial application at the same time, the need for the current implementation of the trial system, performance appraisal system, the judge incentive system and other reforms, so that these systems are more in line with the law of justice. More importantly, judicial efficiency is only one of the criteria for measuring the effectiveness of the rule of law and the effectiveness of national governance. With litigation cases still rising year after year, even in the digital age, the optimal allocation of other resources for the rule of law and national governance remains an important prerequisite for enhancing the overall effectiveness of the rule of law. In other words, when the judiciary emphasizes the improvement of efficiency in handling cases, it should also set a reasonable limit for judicial efficiency under the premise of comprehensively considering the allocation of other resources, instead of simply thinking that “the higher the efficiency, the better”. Setting reasonable limits on judicial efficiency not only reduces the risk of judicial impartiality, but also stimulates the vitality of other resources for dispute resolution and governance in the State and society and guides the public to establish a correct view of litigation and a sense of self-responsibility.

Conclusion

The Five-Year Development Plan for Informatization Construction of the People's Courts (2019-2023) proposes to build a trial support system based on big data intelligent services, and to realize that “some courts will improve the trial support system based on artificial intelligence and virtual reality, and realize the precision and efficiency of trial support”. In the process of implementing this requirement, the contradictions between the traditional judicial laws and the intelligent social environment must be recognized and overcome. Judicial independence, substantive justice, procedural justice, judicial democracy, judicial efficiency and other judicial laws or judicial principles have their traditional connotations and boundaries, but also need to keep pace with the times and make corresponding adjustments in the context of the digital era and digital justice, and thus develop and improve the new era of socialist judicial theory with Chinese characteristics.