by Straton Papagianneas
In January, the Supreme People’s Court (SPC) published Provisions on Several Issues Related to the People’s Court’s Handling of Cases Online (“the Provisions”) to solicit public comments.[i]
Its publication is timely and important after a difficult 2020, where the COVID-19 pandemic and restrictions on physical gatherings prevented courts from operating normally, driving litigation online. Chinese courts were able to adapt quickly and successfully thanks to earlier digitalisation efforts, which meant that most of the infrastructure was already in place.[ii]
Experiments with online litigation started at selected courts back in 2017[iii], although initially limited to internet-related cases. Due to the pandemic, all of China’s courts were tasked with conducting as much of their processes online as possible, even going beyond civil cases.[iv]
The publication of these Provisions indicates that the work of consolidating experiences and unifying practice has begun. The Provisions are most likely only the first step in standardising online litigation procedures. In the near future, we might see the development of a national law related to online litigation procedures, on par with the Civil and Criminal Procedure Laws. This development is inevitable, according to one observer.[v]
Meaning, Scope, and Consent
The Provisions have 36 articles, explaining every procedural stage of the trial process.
Articles 1 to 6 provide for the validity, scope, and conditions for using online litigation. The infrastructure provided for online litigation may also be used for online mediation.
Online litigation requires the parties’ consent, but may also be used in parallel with offline litigation. This means that at any point in time during a case, a party may revoke its consent to holding procedures online and request to continue the litigation offline. Even where the court finds that online proceedings are not inappropriate; the non-consenting parties may participate offline.
In terms of the broader reform goals of expediting and simplifying judicial processes, this option seems counterproductive. Enabling parties to revoke their consent at any time and allowing for parallel offline and online procedures, is likely to increase courts’ workload and complicate matters. Ensuring consent, however, precludes appeals on the basis of online procedures having deprived parties of their procedural rights at trial.
Articles 9 through 17 are dedicated to the submission, exchange, and verification of electronic evidence. Evidence may be submitted through scanning, copying or transcription so as to digitally process and upload it to the litigation platform. These digital representations have the same validity as the originals, and the originals do not need to be submitted to the court except in specific circumstances.
This makes verifying its integrity a major concern. Article 11 tries to address this by providing different circumstances, such as the notarization of the formation process, and comparison between the digital and original versions of the documents. While notarizing is the strongest method of verification in China, it is not the best scenario in this digital environment. The cost of notarising digital evidence is significant.[vi]
Articles 14 to 17 explain the scope of blockchain evidence, which may be used as a method of digital evidence integrity protection. Blockchain evidence refers to evidence submitted by the party that is recorded through blockchain technology. Currently, it is being used in the judicial system as a useful supplement to improve the credibility and authenticity of electronic evidence.[vii]
Given the nationwide embrace of information technology by Chinese courts, including more advanced applications based on machine learning algorithms, one can expect the use of blockchain technology to become widespread as well. However, the treatment of evidence has long been problematic in the Chinese judiciary.[viii] While the digitalisation of evidence treatment is thought to improve exchanges, accuracy, standardisation, and generally “reduce injustice”[ix], its success largely depends on its adoption by other judicial organs, such as the procuratorate and the police.
Articles 18 through 25 deal with the trial hearing. Online litigation has made asynchronous trial hearings possible. This is especially conducive to improving access to justice. However, asynchronous trials are only allowed online in small claims procedures and administrative summary procedures.[x] Given the limited application of asynchronous trial – only the simplest of procedures may be conducted in this manner – it is unlikely to significantly impact litigation.
Especially worrying is the immediate waiver of litigation rights if a party fails to complete the online litigation activities within the specified time limit. It is unclear what this means for the proceeding of the case. There is no option for appeal on the basis of legitimate reasons. While consent to online litigation precludes appeals because of deprivation of procedural rights, the Provisions do not plan for unforeseen circumstances that may hinder parties’ completion of required procedures within the time limits. This is an issue that the Provisions should clarify.
Furthermore, courts are empowered to choose an offline trial hearing in certain circumstances, such as complications with the evidence, technical conditions, or in “other circumstances that are not suitable for online trial”. This last circumstance most likely entails highly sensitive cases related to social stability or cases dealing with state secrets.
Articles 26 through 30 deal with the service of judicial documents to the litigation parties. Courts are empowered to notify the litigation parties through non-traditional means such as text message, phone calls, or instant messaging apps to guarantee that parties are notified of being served.
Service of judicial documents is another issue that the judiciary struggles with, as parties may change address and fail to inform the relevant authorities or not have a valid address at all. This is especially problematic when cases involve migrant workers, who are extremely mobile and often do not possess an official address. Digital service also allows for the sender, i.e., the courts to get confirmation that service was successful. Therefore, the service of documents through digital means is a straightforward way to address this issue. The ubiquitous use of smartphones and instant messaging apps such as WeChat in the PRC will likely make the digital service the primary channel of serving documents for courts.
Articles 31 to 33 deal with recording, archiving, and enforcement. Article 34 expands the scope of online litigation to specific criminal cases such as private prosecution, expedited procedures, and commutation and parole cases.
Lastly, Article 35 provides for the protection of the data and information generated during online litigation. Only the court has the authority to release specific data or information. Parties who disclose information or data generated from the litigation, will be pursued for legal responsibility and may even be criminally prosecuted. For now, data protection is mainly regulated through the Cybersecurity Law and the Chinese Civil Code in the absence of a comprehensive personal data protection law.[xi]
Many questions need to be answered before these Provisions can become a full regulation. Some of the stipulations evoke concern for the parties’ procedural rights.[xii] Additionally, there is no clarification as to whether this applies to cross-border cases, as another observer remarked.[xiii] Lastly, the benefits in terms of efficacy and expedition are unclear if simultaneous offline and online litigation are permitted.
[i]《 关于人民法院在线办理案件若干问题的规定（征求意见稿）》 (Provisions on Several Issues Related to the People’s Court’s Handling of Cases Online), issued on Jan 21, 2021, https://www.chinalawtranslate.com/en/online-cases-draft/.
[ii] Dong, Y. (Dec 2020) Online Trials in China: New Development Trends and Future Prospects. 11 China Law Connect 1. http://cgc.law.stanford.edu/commentaries/clc-11-202012-33-dong-yiming.
[iii] Tang, S. (Aug 21 2017) China’s First Internet Court Hears Debut Case. Yicai Global. https://www.yicaiglobal.com/news/china-first-internet-court-hears-debut-case.
[iv] 《最高人民法院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》 (Notice of the Supreme People’s Court on Strengthening and Standardizing Online Litigation Work During the Prevention and Control Period of the Coronavirus Pandemic), issued on and eﬀective as of Feb. 14, 2020, http://www.court.gov.cn/fabu-xiangqing-220071.html
[v] Dong, Y. (Dec 2020) Online Trials in China: New Development Trends and Future Prospects. 11 China Law Connect 1. http://cgc.law.stanford.edu/commentaries/clc-11-202012-33-dong-yiming.
[vi] Lu, T. (2020) The Implementation of Blockchain Technologies in Chinese Courts. Stanford Journal of Blockchain Law & Policy 4(1): 102-120.
[viii] See, e.g., Zhang, L. (2021) A Path to Standardizing Material Evidence Collection in Chinese Criminal Justice. Modern China 47(1): 85-121. Guo, Z. (2020) Live witnesses in Chinese criminal courts: Obstacles and reforms. International Journal of Law, Crime and Justice 62: 1-12. Capowski, J. (2012) China’s Evidentiary and Procedural Reforms, the Federal Rules of Evidence, and the Harmonization of Civil and Common Law. Texas International Law Journal 47(3): 455-504.
[ix] Liu, C. & Chen, L. (2019) 数据化的统一证据标准 [The Datafied and Unified Evidence Standard]. 国家检察官学院学报 [Journal of the National Prosecutors College] 2: 129-143.
[x] Article 19.
[xi]Yu, L. & Ahl, B. (2021) China’s Evolving Data Protection Law and the Financial Credit Information System: Court Practice and Suggestions for Legislative Reform. Hong Kong Law Journal. Available at SSRN: https://ssrn.com/abstract=3782392.
[xii] Article 4 and 18 stipulate the waiver of procedural rights in case of non-compliance. However, there are no provisions for appeal, and the exact circumstances are not clarified. There could be many reasons, such as technological barriers, internet connection, technological literacy, for “failure to participate” or failure to “complete litigation activities asynchronously” within the specified time limit.
[xiii] Finder, S. (Jan 25 2021) Supreme People’s Court Solicits Comments on Court Online Procedures. Supreme People’s Court Monitor. https://supremepeoplescourtmonitor.com/2021/01/25/supreme-peoples-court-solicits-comments-on-court-online-procedures/.