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China's First National Online Litigation Rules Series-01: Scope of Application & Adjudication Rules

Sun, 04 Jul 2021
Categories: Insights

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In June 2021, China’s Supreme Court promulgated the “Online Litigation Rules for People’s Courts”, marking the first nationwide rules that fully integrate online litigation technology into litigation proceedings. 

On 16 June 2021, China’s Supreme People’s Court (SPC) promulgated the “Online Litigation Rules for People’s Courts” (“Online Litigation Rules”, 人民法院在线诉讼规则). It’s the first time that China promulgated a set of systematical online litigation rules, which are applicable to all judicial cases and proceedings of the courts nationwide.

Prior to that, the SPC had issued 3 sets of online litigation rules, which, however, were only applicable to specific courts (3 Internet Courts), to specific proceedings (such as court hearings, instruments submission, and service of process) or to a particular period (such as during the COVID-19 pandemic). The promulgation of the Online Litigation Rules this time comprehensively integrates the online litigation technology into litigation proceedings in China. [1]

In this post, we will introduce the scope of application and adjudication rules pursuant to the Online Litigation Rules, and in another post, we will introduce the asynchronous adjudication and electronic evidence rules.

1. What is online litigation?

Online litigation means that all the litigation proceedings, from case registration to execution, will be completed online, which shall have the same legal effect as offline litigation. (Article 1)

However, it does not require that all proceedings must be done online. The following circumstances may be allowed and vary from case to case:

i. all proceedings are completed online;

ii. a part of the proceedings are completed online;

iii. part of the parties concerned participate in the proceedings online while other parties concerned participate in the proceedings offline.

Online litigation will be carried out via the court’s online litigation platform. Currently, the SPC and local courts are all developing their own online litigation platforms. In the future, it is likely for the SPC to integrate these platforms across the country.

2. What cases are applicable to be adjudicated online?

Except for some criminal cases, for all civil cases, administrative cases, and a small number of criminal cases, the proceedings can be completed online. (Article 3)

As for criminal cases, for the time being, criminal litigation cannot be completed online in general, for most criminal cases involve the cooperation and integration of investigation, procuratorial and judicial organs, as well as their special requirements in respect of evidence rules, protection of parties’ rights and data safety. However, cases involving expedited criminal proceedings, commutation, and parole, as well as cases that cannot be adjudicated offline due to the epidemic and other reasons may be subject to online litigation.

3. Under what circumstances may online litigation be applied?

(1) When the parties agree to participate in online litigation.

Online litigation, which provides more options for the parties concerned to participate in litigation, is not mandatory, so it shall be based on the parties’ choice or consent. (Articles 4 and 5)

Where a party concerned disagrees on the online litigation, the right of other parties concerned to litigate online shall not be affected, and cases may be adjudicated in a “semi-online” manner.

After the parties agree on the online litigation, if they do not apply for transferring to offline litigation and have no justifiable reasons, the court shall handle the case by reference to a similar circumstance under the offline litigation where the parties concerned will bear adverse consequences therefrom.

(2) When the cases are suitable to be adjudicated online.
Courts need to decide whether the case is suitable to be adjudicated online according to the actual situation. (Article 21)

For example, in the cases involving national security, state secrets or major foreign-related cases, all the proceedings shall be completed offline in general; for cases that involve a large number of parties, are complicated, have considerable evidence, and take a long time to be adjudicated, the trial process should generally be carried out offline, while other procedures such as case registration, mediation, and service of such cases can be completed online.

4. How to ensure that the parties participate in the online litigation in person?

Compared with offline litigation, online litigation tends to cause people’s attention to the authenticity of the litigants’ identity, so the SPC pays extra attention to the online identity authentication. (Article 7)

At present, Chinese courts mainly verify people’s identity through online comparison of identity certificates and identity authentication platforms. Some courts have linked to the population information system of public security departments, and on such a basis, courts verify the person’s identity via face recognition. However, the court needs to obtain the consent of the parties before adopting such method.

After the initial verification of the party’s identity, once the party logs into the account again, the following actions will be regarded as the actions conducted by the party himself/herself.

5. How to ensure the etiquette in online court hearings?

In online court hearings, the court rules shall be the same as that in offline litigation, and the parties shall not act against the court discipline. (Articles 24 and 25)

In view of the features of online court hearings, the Online Litigation Rules clarifies where a party fails to attend a court hearing for reasons other than technical reasons, or quits without permission, he/she may be deemed to have “refused to appear in court” or “quitted the court in the middle of a case”. However, in the case of technical malfunctions such as “failure to appear in court on time, absence from the court hearing page, static audio and video of the hearings”, the court shall not directly determine the violation of court disciplines, but shall first issue a reminder or warning and require the litigant to justify the action.

6. How does a witness testify in court?

Chinese law stipulates that witnesses shall appear in court when giving testimony, and witnesses can use audio-visual transmission technology to give testimony under specific circumstances.

Under online litigation, online witness appearance in court is also a legal form of testifying in court. However, the key point is to ensure that the witness shall not observe the case hearings and shall not be disturbed by others.

Therefore, the Online Litigation Rules clearly requires where a witness appears in court online, the court shall ensure that he/she will not observe the case hearings or be disturbed by others by designating a place for online appearance in court, setting up an online room for testimony or otherwise. (Article 26)

7. How to ensure the security of the data collected in online litigation?

First, for the data generated in the online litigation, the relevant parties also need to comply with relevant laws and regulations on data security and personal information protection.

Secondly, the court is the subject of the data relating to the online litigation, and only the court has the right to decide whether to disclose the data to the public.

Thirdly, all parties involved in the litigation have the obligation to protect the online litigation data and information.


References:

[1] The 3 online litigation rules promulgated by the SPC previously refer to:

the “Regulation on Several Issues Concerning the Cases Adjudication by Internet Courts” promulgated in September 2018 (关于互联网法院审理案件若干问题的规定), which is applicable to the 3 Internet Courts in Hangzhou, Beijing and Guangzhou.

the “Implementation Measures of the Pilot Reform on Separation between Complicated and Simple Cases in Civil Proceedings” (民事诉讼程序繁简分流改革试点实施办法) promulgated in January 2020, which is applicable to online case adjudication, electronic document submission and electronic service of specific courts; and

the “Notice on Strengthening and Regulating Online Litigation during the Prevention and Control of COVID-19 Epidemic” (关于新冠肺炎疫情防控期间加强和规范在线诉讼工作的通知) promulgated in April 2020, which is applicable to cases where courts cannot conduct court hearings offline when the epidemic is severe.

 

Photo by Iewek Gnos on Unsplash

 

Contributors: Guodong Du 杜国栋 , Meng Yu 余萌

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