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The COVID-19 outbreak in China during the Chinese New Year holiday in 2020 was the most widespread and toughest-to-control epidemic affecting the country since the founding of the People’s Republic of China. For courts in China, they faced not only the new problem of ensuring safety protection against the epidemic, but also the new challenge of dealing with cases related to the epidemic.
In January 2016, the Supreme People's Court (SPC) first proposed the building of “smart courts”. Over the last four years this vision has been realised with the establishment of China’s first internet court in Hangzhou and the first experimental “mobile micro-court” in Ningbo.
Internet courts are special courts set up to hear internet-related cases. By applying Big Data, Artificial Intelligence (AI) and other new technologies to judicial practice, these internet courts have built smart tribunal platforms to resolve internet-related issues.
The Beijing Internet Court, for example, has had 100% of its cases filed online through its electronic tribunal platform. It has held more than 4,000 hearings, of which only 46 of them were offline. Ms. Shu Chang, partner at Beijing Jingda Law Firm, said the application used by the court “is open and transparent, enables trusted authentication of electronic evidence, and improves judges’ efficiency in terms of determining the credibility of electronic evidence”.
In 2018, five standard e-litigation modules were established in courts across China to cover online case-filing, online payment, online evidence exchange, online court hearings and electronic service of documents. Mr. Wu Chen, Director of Wu & Associates, said, “Apart from the internet courts, a lot of courts have adopted some Internet-based remote functions. For example, the Beijing High People's Court has developed an online service system to provide services to case parties and lawyers, which include online case filing, submission and contacting judges.”
“In terms of the judges’ converting to a remote working mode,” Shu Chang said, “all four levels of the courts in Beijing now provide remote court procedures, and the judges are in the process of training.” She continued, “Remote operations have been generally adopted for procedures such as case assignment, internal approval, stamping and court hearing. With batch processing of similar cases and automatic document generation, the courts have achieved a speedy trial and closing for simplified cases, ensured comparable results for similar cases, and improved the overall trial quality and results. In remote court trials of small claims or summary proceedings, video recordings have replaced court transcripts, greatly improving the efficiency of court proceedings.”The “Mobile Micro-Court” is built on WeChat’s platform and uses face recognition, electronic signatures, real-time audio and video interactions to overcome the limitations of time and space. It can be used to create mobile solutions for the whole process - from case-filing, evidence exchange, pre-litigation mediation, court hearing and electronic service of documents.
During the COVID-19 outbreak, China’s judicial system actively relied on mobile micro-courts, litigation service websites, litigation service hotlines and other online litigation platforms to provide online litigation services.The initiative of "online proceedings for the special time" has helped ensure that the judicial system can operate in an orderly manner.
1. The same procedures and rules apply equally to remote and physical hearings so that procedural fairness can be ensuredThe simplified operation and process optimisation of online litigation is compliant with all the procedural requirements of China’s legislation on litigation. It does not go beyond the boundaries set by existing laws and judicial interpretations. The changes brought by online litigation come from innovations in tools and methods, not a disregard for procedures or norms.
Mr. Zhang Zhisong, Director of Beijing Ze Tian Law Firm, said, "Remote hearings are basically no different from physical hearings - all the proceedings are the same. After filing a case online, lawyers will receive a link to participate in the court hearing.”
2. Remote hearings can improve the efficiency of trial proceedings and save time and cost
“Remote hearings have a lot of benefits,” said Wu Chen. “They greatly improve the cost-effectiveness of court proceedings. If a hearing is not held locally, they help save a lot of time. Secondly, remote hearings enable the uniform application of standards in trials. In the past, different regions might apply different technical means in their court hearings and different judges might have different understandings of similar cases. But now, with the standardised design enabled by the Internet, a lot of problems can be solved. Transcripts of court hearings in Beijing, which were not previous displayed synchronously with the proceedings, are now fully synchronised now thanks to the Internet. This helps solve many problems, such as the problem of amending the transcripts."
3. Adoption of remote hearings needs to be considered on a case-by-case basis Whether an online court hearing is to be conducted will be determined by the judicial system based on a range of factors, technical conditions, case specifics and the willingness of the parties. As noted by Zhang Zhisong, “At present, the “Cloud Court” approach can’t be applied to criminal cases, or major or complicated cases. It can be used for other cases, such as simplified civil or commercial disputes, mediation or arbitration.”
4. Online litigation toolkits are provided on both PC and mobile terminals
During the outbreak, the Chinese judicial system has provided online litigation services through online court hearing systems, online dispute resolution (ODR) platforms, mobile micro-courts, WeChat and phone calls. Cases involving simple information can be operated via the “Mobile Micro-Court” mini-program on WeChat. More complicated cases usually saw the online case-filing system for the court in question more closely attuned to their specific requirements.
1. Courts in China still function normally
"As all courts adopted flexible working systems after the Spring Festival and have resumed normal working hours, the epidemic has no impact on the conclusion of cases.” Shu Chang said, “at present, functions such as online case-filing, online evidence preservation, online enforcement, and online judicial auction working as normal.”
“From a technical point of view,” Wu Chen commented, “the epidemic has had little impact on China’s judicial system. Cases can be filed and handled via the Internet.”
The SPC has emphasised that if the hearing of a case can be postponed during the COVID-19 prevention and control period, then it should be postponed in principle. In the event of an application for extension of the statute of limitations, the legitimate rights and interests of the parties concerned shall be fully respected based on actual conditions.
“Each court has already published notices on the postponement of case handling during the Spring Festival holiday. Furthermore, during the epidemic there are provisions in many localities requiring those who travel from one place to another to undergo 14-day quarantine. All these have an impact on the time schedule of a case,” said Mr. Wang Yun, senior partner of JJ & G Law Firm.
3. Priority is given to cases involving the epidemic
Tian Yan’gang, executive director of Beijing Lvli Law Firm, has seen an increase in the number of cases involving the COVID-19 epidemic. “Cases involving the epidemic, such as labour and leasing disputes are on the rise.” Wu Chen noted that, “the epidemic has caused an increase in the number of cases, but it is not certain whether the increase is exponential.”
“As to the priority of case hearing,” Wang Yun noted, “some cases involving the epidemic will be given priority, such as those involving the quality of masks and the force majeure in contracts."
In terms of the rules on case hearing, the SPC has promulgated the guiding opinions on hearing cases related to the epidemic, clarifying relevant rules on case hearing, for example, “an employer’s request for rescission of a contract on the grounds that the employee is a patient with COVID-19 will not be supported” and “the request for rescission of a contract filed by the party concerned who fails to achieve the contractual purpose due to the epidemic or the epidemic prevention and control measures will be supported”, so that cases related to COVID-19 can be handled properly.
4. Turning risks into opportunities, the “Smart Court” programme develops rapidly amid the epidemic
The lawyers shared optimistic views when asked about the impact of the COVID-19 epidemic on China’s judicial system. Such optimism mainly comes from the following aspects:
Online litigation has become normal during the epidemic. It has transformed working patterns for legal workers.
During the epidemic, the results of the last four years of Court reforms have undoubtedly contributed to China’s judicial system resuming its normal case hearing. Wang Yun commented, “as technologies keep developing, I expect online case-filing to become a dominant practice. Online case filing is low-cost and can save both the lawyers and the parties concerned a large amount of time.”
“The hearing efficiency can be significantly improved. For example, the ‘Cloud Court’ is equipped with a highly sensitive speech recognition system. Even a simple word you whisper can be recognized and recorded in a file. In the past, the clerk might mishear or omit some words. The influence of online case hearing on the judicial quality is mainly positive. In my opinion, all the ‘Cloud Court’ can do is to raise the quality of justice and promote the rule of law in China.” Zhang Zhisong gave his praise.
Some problems have been exposed during the move to cloud courts, such as network environment requirements, supervision on the court order, the effect of evidence presentation, the efficiency of video communication, etc.
At present, China is in a transitional stage where paper-based offices and digital offices coexist. Lawyers need to upload paper documents to the digital system. This will consume quite some time if they have not been used to electronic archiving before. In terms of court hearing, evidence will become a key factor in deciding whether remote court hearings are applicable. Court hearings will be affected if evidence is only displayed through a webcam, and electronic transmission is not completed in advance. Mr. Huo Zhijian, partner of Beijing Yuren Law Firm believes that, “some evidence will have better effect only if it is presented in the court on site along with interpretation. Some drawings also need to be provided on site.”
To overcome these difficulties, it is essential to gradually improve the online litigation system and apply professional tools at a technical level to provide more comprehensive and considerate support for the judicial work.
As Zhang Zhisong commented, “people all over the world should be able to see that the COVID-19 epidemic brings not only disaster but opportunity. Instead of complaining, we should take advantage of this opportunity to change ourselves.” Building upon the result of its information-based development, China’s judicial system has responded quickly to the epidemic outbreak and formed a solid line of defence for justice.
Wu Chen also shared his view that “China’s judicial circle tends to embrace any new thing that is useful, including technologies. New technologies are often revolutionary and are capable of solving many controversial issues in our legal community. While Western countries have a long judicial history, it is advised that our peers in the UK and other countries, with the opportunities brought by the epidemic, apply new technologies in the field of justice, discover their advantages, and find solutions to any weakness they may have. This is the right attitude to have.
We hereby extend our gratitude to the Beijing Lawyers Association for its support to LexisNexis with regard to this article. Our sincere thanks go to the following lawyers (by stroke order of surname) who share with us their insightful thoughts during the interview.
Wang Yun, senior partner of Beijing JJ & G Law Firm; member of Professional Committee of Intellectual Property of the All China Lawyers Association; member of Law Firm Management Committee of the Beijing Lawyers Association; director of Professional Committee of Copyright Law of the Beijing Lawyers Association
Tian Yan'gang, executive director of Beijing Lvli Law Firm; director of Professional Committee of Tort Law of the Beijing Lawyers Association; expert member of the People's Mediators Association of Chaoyang District; expert lawyer of the legal advisory group for the 2022 Winter Olympics
Wu Chen, director of Beijing Wu & Associates Law Firm; litigation service expert for the Supreme People's Court; expert of the Supreme People's Procuratorate for civil and administrative procuratorial supervision; lawyer expert of the Ministry of Justice; expert of Beijing Public Legal Service Center for review of major and difficult cases
Zhang Zhisong, director of Beijing Ze Tian Law Firm; head of Legal Affairs Department of the Organising Committee of the "Belt and Road – the Trip of Chinese Industrial Brands on the New Silk Road" Program under the Ministry of Industry and Information Technology; member of Legal Advisory Committee of the China Association of Auctioneers; member of Professional Committee of Public Bidding and Auction of the Beijing Lawyers Association; expert consultant of the Supreme People's Procuratorate for civil and administrative cases
Shu Chang, partner of Beijing Jingda Law Firm; secretary-general of Members Affairs Committee of the Beijing Lawyers Association; director of Professional Committee of Marine and Maritime Law of the Beijing Lawyers Association; expert consultant the Supreme People's Procuratorate for civil and administrative cases
Huo Zhijian, partner of Beijing Yuren Law Firm; member of Professional Committee of Environment, Resources and Energy Law of the All China Lawyers Association; director of Professional Committee of Environment and Natural Resources Law of the Beijing Lawyers Association; deputy director of Law Committee of the China Mining Association
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