- What is the best way in online litigation and digital justice? Centralized or Decentralized? Chinese courts keep exploring the best solutions in different fields. At the current stage, a decentralized system is adopted for China’s online litigation.
- Online litigation, though normalizing and expanding in China’s judicial practice, is also troubled by problems related to its initiation - should the online litigation be initiated by the court or upon application by the parties?
- In practice, online litigation, to some extent, has greatly reduced the parties’ litigation costs. But for the court, online litigation does not turn out to be more efficient compared with traditional offline litigation. For example, the time spent by the court to prepare for the online trial will increase by about 0.5-1 times compared with the offline trial.
China’s online litigation and digital justice have made remarkable progress in recent years. In this new era, is there the best way towards E-justice? If so, what is the best way? Centralized or Decentralized? Chinese courts keep exploring the best solutions in different fields.
For example, should the online litigation system be a nationally unified centralized system or a decentralized system varying from one court to another? Should the online litigation be initiated by the court or upon application by the parties?
Xie Dengke (谢登科), a professor at Jilin University Law School (located in Northeast China, one of the top Chinese law schools), shared some information and his views related to the above issues in the article titled “China’s Online Litigation and Its Development” (在线诉讼的中国模式与未来发展) published in “China Journal of Applied Jurisprudence” (中国应用法学) (No. 4, 2022).
1. Online litigation system: centralized system vs. de-centralized system
China’s Civil Procedure Law (CPL) stipulates that online litigation shall be conducted online through the “information network platform”, but fails to provide for the type of information network platform.
Some believe that China should establish a centralized electronic litigation system platform nationwide, on which online litigation should be conducted from the Supreme People’s Court (SPC) to local courts of three levels (i.e., high, intermediate and primary). While others believe that local courts can develop their own electronic litigation system platforms.
Currently, the latter view conforms to the actual situation in China, that is, a decentralized system is adopted for China’s online litigation. For example, although the SPC has developed and launched an App called “China Mobile WeCourt (中国移动微法院)”, which has been popularized to courts at all levels nationwide, many local courts still launch their own “mobile court” native Apps or web Apps. Besides, there are three Internet courts in China, each of which operates a separate online litigation system.
Those in favor of a centralized system believe that a centralized system can alleviate the economic burden of the judicial system, eliminate islands of information caused by de-centralized systems, bridge the digital gap between economically developed regions and underdeveloped regions in E-justice, and ensure the implementation of unified online litigation rules throughout the country.
Then, why do decentralized systems still prevail in reality?
The reasons are: a) the Chinese law does not prohibit local courts from developing their own online litigation systems; b) different local courts tend to develop different online litigation systems to meet the various needs they find from the users(litigants); and c) information technology is developing rapidly and different courts adopt new technologies at different paces.
2. Legal basis of online litigation: default consent of the parties vs. active choice by the parties
Online litigation, though normalizing and expanding in China’s judicial practice, is also troubled by problems related to its initiation.
Theoretically, there are two initiation modes: one is that the court proposes to use the online litigation system, and then the parties express their consent; the other is that the parties may take the initiative to request online litigation, and the court would respect the choice of the parties.
China’s CPL has established the principle of “consent of the parties”, that is, if the court wants to apply the online litigation, it should obtain the unanimous consent of all parties.
China’s Online Litigation Rules (在线诉讼规则) stipulates that online litigation can only be applied when both parties agree so. For cases where only some parties agree to apply online litigation while other parties do not, offline litigation is the only choice.
However, Chinese law does not specify whether the parties can take the initiative to choose online litigation, but only grants the court the power to initiate the online litigation.
Viewed from the online litigation practice in China, online litigation, to some extent, has greatly reduced the parties’ litigation costs.
But for the court, online litigation does not turn out to be more efficient compared with traditional offline litigation. For example, the time spent by the court to prepare for the online trial will increase by about 0.5-1 times compared with the offline trial.
As a result, in many scenarios, courts are reluctant to initiate online litigation.
According to relevant investigation results, in February 2020, after the COVID-19 outbreak, the proportion of online trials to all trials held by some local courts was 34.96%, while in April after the pandemic eased, the figure dropped to 19.22%. This is not an individual but a quite common phenomenon among many local courts.
Therefore, some believe that litigants should be allowed to apply for online litigation. In fact, the Provisions on Certain Issues Concerning the Trial of Cases by Internet Courts (关于互联网法院审理案件若干问题的规定), formulated by China for her three Internet courts, have granted the parties such litigation rights.
Contributors: Guodong Du 杜国栋